Asia-Pacific employment law bulletin 2022
Developments in the in light of COVID-19
Return to work
As was the case with the rest of the world, in early 2020, the “normal” working arrangements in India were disrupted by the pandemic with organisations across India being forced to adapt to the new “virtual” workspace. Both the Indian government as well as private sector employers had to scramble to put together appropriate advisories and policies to cater to this unprecedented work environment. Subsequently, in 2021, with the lockdowns and restrictions which had been imposed by the government being relaxed in a phased manner, several Indian states allowed establishments to operate with 100% staff capacity subject to employees working in shifts at staggered office timings and following COVID-19 appropriate behaviour at the workplace.
Looking forward, instead of a complete return to office, employers are reportedly devising strategies to implement an effective hybrid working model – it seems like after almost two years now, employees and employers alike have adjusted to this “new normal”. However, the current employment law in India does not cater to the hybrid working model. Whilst, after the initial pandemic outbreak, draft model standing orders were issued by the government incorporating the concept of “work from home” and allowing employers and employees to mutually decide on the work hours and other service conditions, it was limited to the services sector.
It is now being reported that the government has taken a step forward in this direction and is putting together a comprehensive framework for regulating these new models of working. This new framework will, amongst other things, define a) the liability of employers towards employees working remotely, b) regulate work hours for employees, and c) set out the payment of additional expenses incurred by employees on electricity and internet usage in the course of remote working.
According to a study by the National Association of Software and Service Companies (a non-governmental trade association and advocacy group focused on the technology industry of India), only 50% of the workforce is likely to return to offices and for only up to three days a week commencing 2022, with more than 60% of the employees aged between 18 and 40 years favouring a hybrid work arrangement. Therefore, in order to incorporate the changing dynamics of the work culture, companies have started charting out different models of hybrid working, giving employees the flexibility to spend their working days between working from home and office. Such flexibility is of course limited to the positions which by their nature can function remotely and would therefore not include roles in sales, manufacturing and other field jobs. Few companies are also considering distributing the work from office days in terms of hierarchy which requires senior officials to work from the office for a greater number of days as compared to their juniors in order to enable an effective supervision of the hybrid working system.
Vaccination continues to be voluntary and there have not been any uniform guidelines on COVID-19 testing. Nevertheless, some organisations have formulated their own internal policies whilst others have conducted vaccination drives in association with hospitals or health centres to get their employees and their families vaccinated. We are seeing a hybrid approach being adopted by the employers where they are mandating employees (who are eligible to be vaccinated in accordance with the government policy and/or are not prevented from being vaccinated due to medical or maternity issues) to be vaccinated as a pre-requisite to returning to the office, while permitting unvaccinated employees to continue working remotely.
Further, whilst employers have also been collecting data in relation to the vaccination status of their employees in order to plan, they need to be mindful of the data privacy related obligations in India since details regarding vaccination status will qualify as sensitive personal data” requiring the prior consent of the respective employees.
The demand for remote working has increased significantly. Therefore, in order to attract prospective employees and retain talent, employers have started opening job positions by offering remote working. Many employers have started taking measures such as using technology to monitor employees (by means of virtual clocking in and out, tracking work-computer usage, monitoring employees’ communications etc) and planning infrastructural makeovers in order to make workspaces sustainable to the post-pandemic world.
However, the current employment law in India does not cater to the hybrid working model. Whilst, after the initial pandemic outbreak, draft model standing orders were issued by the government incorporating the concept of “work from home” and allowing employers and employees to mutually decide on the work hours and other service conditions, it was limited to the services sector.
It is now being reported that the government has taken a step forward in this direction and is putting together a comprehensive framework for regulating these new models of working. This new framework will amongst other things define the liability of employers towards employees working remotely, regulate work hours for employees, and provide for payment of additional expenses incurred by them towards electricity and internet usage.