Article (January-2022)

Articles

Work-from-Home (WFH) - The challenges of the new normal

Vineet Vij

Designation : -   Global General Counsel

Organization : -  Tech Mahindra Group

01-Jan-2022

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Ever since the start of 2020, the term COVID-19 emerged as the global buzzword though for all the wrong reasons and continues to be the most challenging thing for the whole mankind to deal with. Rallying behind the same, if not along, the acronym "WFH" for Work-from-home has also firmly etched its place in the minds of people to be remembered for the times to come. Owing to COVID-19 continued disruption and not allowing normalcy to be returned, the governments and businesses across the globe were put under the tremendous challenge as to how to keep everything up and running. The WFH model which though was not a new concept but nobody thought that it would become the most needed one to be adopted world over as the new normal of not only keeping the things moving but an integral way to live. COVID-19 fast-tracked this transition at an unimaginable pace, which until recently had traditionally witnessed plethora of challenges that resisted WFH due to stringent regulatory restrictions, contractual impositions by customers & stakeholders, data protection concerns vis-à-vis several other infrastructural challenges. This sudden shift to WFH during the pandemic was especially challenging for the industry where data, devices, and even personnel in certain cases were not allowed to operate only outside the confines of a pre-specified workplace-setting in terms of infrastructure set-up, regulatory and/or customer requirement. Nevertheless, surmounting the extraordinary challenges in these uncertain times, Indian companies with  due support of the regulators managed to implement WFH at lightning speed in order to ensure business continuity and surpassed expectations of IT service providers as well as customers, which is a testament to the unwavering faith of global customers that have trusted Indian IT companies in their ability to come up with unique solutions and ensure compliance in the process of delivering optimal results.

Legally speaking, the crises faced by industries in implementing WFH itself stemmed from an unprecedented lack of clarity of provisions around remote-working. Notwithstanding circulars and guidelines that public authorities released from time-to-time, there was a lack of statutory recognition of the WFH set-up as well. The government agencies taking account of the emergent situation swiftly acted on the concerns raised by the industry by allowing relaxation in regulatory norms from March 2020 and in November 2020, released fresh set of OSP guidelines to wholeheartedly support the 'work-from-home' initiative. The registration requirement for OSPs had been done away with altogether and the BPO industry engaged in data related work have been taken out of the ambit of OSP regulations. In addition, requirements such as deposit of bank guarantees, requirement for static IPs, frequent reporting obligations, penal provisions and other restrictions were also removed. Similarly, several other requirements, which prevented companies from adopting 'Work from Home' and 'Work from Anywhere' policies, were also removed. Small companies in rural areas can now connect to OSP centers of larger companies who receive work from various customers and further outsource it to smaller centers of rural areas, with further relaxations being introduced in June 2021.

Unfortunately, when compared with other countries, in India legal regime giving recognition to WFH is still very limited whereby WFH set-up and clearly establishes the rights and liabilities of employers and employees. Unlike the Indian legal regime, forms of remote working are recognized in some countries and the WFH phenomenon is generally referred to as "telework". Telework is understood as the practice of employees using laptops, desktops, mobile phones, and other tools to perform work beyond the employer's premises. In California, for instance, state employees were encouraged to work from home with telecom tools and computers vide the State Employment Telecommuting Program, 1995 itself. Teleworking has been recognized by the International Labour Organization (ILO) vide Convention No. 177 on "Home-Work" of 1996, which aimed to establish equal status for employees working from home and employees working in the physical workplace setting. The US federal government also promotes teleworking for its employees. The Telework Enhancement Act, 2010, "requires each Executive agency to establish a policy under which eligible employees are authorized to telework"1  and also prioritizes work-life balance of federal government employees. Following the ramifications of the pandemic on the physical workplace, several countries passed laws giving legal recognition to WFH and outlining rights of employer and employees engaged in WFH. Spain introduced the Royal Decree Law 28/2020 of 2020, providing a framework for remote work, Turkey passed the Remote Working Regulation (2021) and Argentina passed the Teleworking Contracts Law (2021). However, India is yet to introduce such comprehensive regulations or legislations governing the WFH set-up.

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Vineet Vij - global general counsel of the Tech Mahindra Group