Government Guidelines on WFH for SEZ Units

In the contemporary business environment, enabling employees to work from home has come up as an indispensable requirement for companies to attract and retain expertise. The SEZ law had introduced regulations to permit Work From Home for employees of IT/ITeS SEZ units, but there was lack of clarity on certain functional aspects i.e. duration of approval, threshold of number of employees permitted to Work From Home, etc.

The Union Commerce Ministry came out with a notification allowing work from home for a maximum period of 1 year in a Special Economic Zone (SEZ) unit, which can be extended to 50% of total employees including contractual employees. The Ministry of Commerce and Industry, Department of Commerce (SEZ Section) issued a notification and notified an insertion of a new rule 43A for Work From Home in Special Economic Zones Rules, 2006. There are 8 functional SEZs in India at the moment including — Santa Cruz (Maharashtra), Cochin (Kerala), Kandla and Surat (Gujarat), Chennai (Tamil Nadu), Visakhapatnam (Andhra Pradesh), Falta (West Bengal) and Noida (Uttar Pradesh).

EXISTING GUIDELINES FOR WFH

During the rise in covid cases, then the Development Commissioner Santacruz Electronics Export Processing Zone -SEZ had issued guidelines regarding Work From Home time to time as no time limit are given under the Rule 43 of SEZ Rule 2006.

By the order dated 22nd March, 2022 with respect to Work From Home, the Authorities had decided to start working from office in a phased manner i.e 1st July, 2022 onwards the units should work from the office atleast with 50% capacity and from 1st September, 2022 with 100% capacity.

However, the Central Government have amended the SEZ Rules, 2006 known as SEZ (Third Amendment) Rules, 2022 which are effective from the date of publication in the Official Gazette i.e., from 14th July, 2022.

Recently Guidelines vide Instruction No. 110 dated August 12, 2022 have been issued providing Standard Operating Procedure (“SOP”) for Work from Home (“WFH”) permission for the implementation of Rule 43A of the Special Economic Zones (Third Amendment) Rules, 2022 (“the SEZ Rules”).

• Applicability The new rule provides work from home for a certain category of employees of a unit in SEZ:
  • Employees of the Information Technology and Information Technology enabled Services SEZ units
  • Employees, who are temporarily incapacitated
  • Employees, who are travelling
  • Employees, who are working offsite
  There is a flexibility granted to Development Commissioner (DC) of SEZs to approve a higher number of employees (more than 50 %) for any bona-fide reason to be recorded in writing.
• Procedure to Obtain Approval
  • The SEZ Unit shall submit its proposal to work from home to the Development Commissioner through email or physical application, which shall contain the terms and conditions of work from home, including the date from which the permission to work from home shall be utilised and the details of the employees to be covered by such permission for work from home.
  • The application shall be submitted alongwith a covering note signed by the authorized signatory of the unit comprising the following details:
    • Date of application
    • Total number of employees including contractual, at the Unit
    • Whether WFH Scheme is for all employees at the unit or for particular categories of employees
    • In case the WFH scheme intends to cover 50% or any higher %, the details of all the employees intended to be covered shall be provided
    • An undertaking that the Unit shall ensure attendance at the Unit based on the percentages provided in the Scheme and as may be approved. The Unit may internally decide how the WFH is to be implemented subject to adherence to the approved percentages. The details of the internal plans are not required to be submitted
    • Details of such employees who would be eligible to opt for WFH
    • Duration for which permission for WFH is required (permission can be sought for a maximum of one year at a time).
  • The attachment submitting the WFH Scheme with the application should be an excel sheet with the following columns:
    • Name and designation of all Employees eligible to opt for the WFH Scheme;
    • SEZ/Unit ID Card No. of such Employees;
    • Validity/Expiry date of the SEZ/Unit ID Card;
    • Details of Laptop / other assets assigned to such Employees;
    • Duration for which the permission for WFH is required (In case it is different from the general duration for which permission is sought).
  • The application shall be made at least 15 days in advance, except in case of the employees who are temporarily incapacitated or travelling, and if employees of the SEZ unit are already working from home, then the application must be submitted within 90 days of the date of issuance of the rule i.e 90 days from 14th July 2022, as a one-time exception.
  • In case of new employees, provisional permission for WFH may be availed on immediate basis, which may be regularized through an application, preferably by email, within 15 days.
  • If the proposal complies with this rule, may grant the permission to the proposal of the Unit which shall be valid for a period of 1 year from the date of permission, extension can also be for not more than 1 year at a time.
• Number of Employees Allowed to WFH
  • The proposal for work from home shall cover a maximum 50% of the full capacity of employees, including contractual employees of the Unit and the Unit shall maintain accurate attendance record for the entire period of permission for work from home and shall submit to the Development Commissioner, from time to time.
  • For the purpose of calculation, the approved percentage of the employees may be calculated based on the monthly employee data of a unit for the previous month and in case of employees working in shifts, the approved percentage may be computed based on the shift wise monthly employee data of a unit for the previous month.
  • The Development Commissioner may approve a higher number of employees to work from home for any bona-fide reason to be recorded in writing.
  • A Unit may submit a revised WFH Scheme at any time, at least 15 days in advance from the date that such WFH Scheme is intended to be put into effect.
• Supplementary Conditions
  With the prior permission of the Specified officer, the unit may provide to an employee laptop, computer, video projection system, other electronic equipment and secured connectivity (for virtual private network, virtual desktop infrastructure) to establish a connection between the employee and work related to the project of the unit. Such goods can be temporarily removed with prior permission to the Domestic Tariff Area without payment of duty or integrated goods and services tax subject to the following procedure, namely:
  • the unit shall account for the goods removed temporarily
  • the unit shall issue a certificate authorising the employee by name and giving the full specification, namely, serial number and model number and make of the equipment intended to be taken outside the processing area temporarily and a copy of the certificate shall be endorsed to the Specified Officer and acknowledgement received by the Unit, and
  • the unit shall maintain a record of such certificate of authorisation issued for temporary removal of equipment.
  • The requirement of endorsement of certificate by the Specified officer shall be implemented in such a manner so as to avoid any hardship to employees who are doing WFH. For example, many new employees have joined Units during the COVID pandemic and the assets like laptops may have been directly dispatched to them. In such cases the requirement of endorsement may be done based on details submitted by the Units. In case where required by the Specified Officer, the Units shall get the physical inspection done at a time when the employees come to the Unit premises.

CONCLUSION

When COVID-19 struck India back in 2020, all companies had opted to work from home model for its employees, as their health and safety was of topmost priority for the organizations. As time progressed, lot of companies transitioned to the hybrid model (partly WFH and partly coming to office) as many employees didn’t wish to return to office completely. The introduction of WFH in SEZs will be highly beneficial to IT firms such as TCS or Infosys, as these already have units in SEZs. Seeing the ongoing trend, companies like Mondelez and Tata Steel said they are hiring for permanent work-from-home roles, while many others including Maruti Suzuki and ITC are embracing a partial remote working approach where employees come to office only for a couple of days. WFH is also beneficial to employers’ lower costs, long hours put in by employees, improved retention, and even easier recruitment. It is not wrong to say that WFH is future as, a Forbes report stated that by 2025, an estimated 70% of the workforce will be working remotely at least 5 days a month.

Disclaimer

The information provided in this article is intended for general informational purposes only and should not be construed as legal advice. The content of this article is not intended to create and receipt of it does not constitute any relationship. Readers should not act upon this information without seeking professional legal counsel.