Covid-19 has resulted in transformational changes to the workplace worldwide. Employees are encouraged to work from home, huge offices are largely empty operating with a minimum necessary workforce and many industries have let portions of their workforce go. While real estate and facility management businesses are struggling to stay relevant, organisations are struggling with health and safety issues as well as internet issues in home offices.
It is also clear now that this situation is going to last a lot longer than earlier assumed. Employers have realised that the expected drop in productivity has not materialised. Employees are enjoying the time saved on the commute and being more diligent. There is a loss in terms of collaborative ability but organisations are evolving quickly to adopt different technologies on this front.
In light of this, do labour laws in India need to change to incorporate and facilitate this unforeseen and rapid change? To answer this, we will look at the major areas where employment conditions are covered by the law and see whether anything needs to change.
Definition of an establishment or factory or workplace – Yes
As of now, the definitions are quite specific to places that carry on a trade or a business. This could be construed to exclude homes. This could get tricky in the case of any incidents at home. How would you distinguish between incidents which occurred in the process of work and household incidents? Would the Employee Compensation Act need to be amended to take work from home into account? This opens a can of worms and needs resolution.
Opening and Closing Hours – No
As these pertain to the workplace and not the employee, there is no need for change here.
Working Hours – Maybe
All states have defined the maximum number of hours of work, hours of overtime, interval periods and spread-over (start of work to end of work including intervals). Typically, these are handled through attendance systems or registers which clock your hours. In the transition to work from home, organisations will be challenged in terms of monitoring these. In environments where overtime is paid, this issue becomes even important. In the case of disputes, there is no longer any physical evidence on either side. While this is complicated, I do not see how a change in the law will make this any easier. This requires a technological solution on part of the employer.
Holidays and Leave – No
While employers should resist the temptation to ask employees to work on off-days just because the office is in the next room, yet again, this is an operational issue that cannot be ameliorated by the law.
Payment Wages – No
Nothing in the employee-employer relationship with relation to wages changes on account of work from home.
Notices and Abstracts – No
Most acts require that employees are able to access its provisions by requiring employers to put up an abstract on the notice board. Similarly, various notices are required informing the employees of minimum wages, holidays, service conditions and authorities whom they can approach. Employers need to find alternate ways of providing this information to employees.
Contract Labour – No
As contract labour are employees of a contractor, and the act governs the contractor-employer relationship, there is nothing that needs to change here. The vast majority of contract labour in India, work on the site in any case, and there will be few cases of work from home here.
While this list covers areas that already exist under the law, a few new areas of concern arise that may need addressing.
Health and Safety
Health and Safety for employees while working at home is a subject not covered at all by the labour laws. As mentioned in the first point, action needs to be taken to ensure that homes are included in the definition of workplaces. This will automatically ensure that any health and safety provisions that have to be followed in law will also have to be followed in the home workplace.
Further, group insurance policies that cover normal workplace incidents may not cover work from home issues. Similarly, the Employee Compensation Act which covers for injuries arising “out of and in the course of employment” would also need to be amended to account for home being the workplace.
Flexible Working Hours
Requests for these are bound to arise in work from home situations. The law does not specifically provide for this and split work hour periods with large intervals could technically contravene spread-over laws. The law needs to provide for this and avoid ambiguities.
Work from home Infrastructure and Expenses
This is a big grey area. Are employees required to use their personal internet connections and furniture for work purposes? What if employees with space constraints that make work from home impossible? As of now, employers are not obligated to look at these issues.
With children also having to stay at home during lockdowns, employees are having to balance work and life at a much more intense level. Employers need to be sensitive to this and the law needs to facilitate this. It could be possible to include extended protection to working mothers with children of a young age.
In summary, the law at this moment falls short on dealing with many work from home situations. With the government already busy with the new labour codes, I do not expect any of this to become a priority soon. At the moment, the balance of arguments rests against the employee.