Navigating Remote Work: How to Handle Legal and HR Challenges When an Employee Moves Abroad

One of my employees is getting married. She plans to move to South Africa and continue to work for us.

My questions are:

1. Do we continue her employment with us as we can approve her to work from home?
2. Do we adhere to Indian labor laws for compensation?
3. If she requests maternity leave, is the company liable to provide her with 6 months of maternity benefits?
4. Are there any legal aspects that need to be taken care of when employing in South Africa?

The responses to the queries are provided below seriatim:

1. You can continue to employ her, and she can work from home, wherever she is. She would be an NRI employee.

2. Since she is employed in India, Indian laws would apply, and she would continue under the same terms.

3. Yes, she would be entitled to all benefits as per applicable Indian laws, including maternity benefits.

4. You can issue an order to this effect, and her continuation would be subject to her consent.

Employment Continuation for an Employee Moving Abroad

Yes, it is clear that as long as you recognize her as your employee by all means, including your company records and payment strategies, you can continue her services either here or abroad. You should authorize her services in writing, indicating that you have allowed her to stay abroad, working from home or elsewhere.

You should ensure that she is not allowed to work for any other company in the foreign country or for any other company in India while abroad, as it could undermine the integrity of her continued employment with your company. Therefore, it is essential to explicitly mention that no transport facilities, like flight charges from abroad to India, will be covered for any reason.

Please note that if you continue to recognize her as an employee of your company, you are always responsible for her safety and security as per labor laws, including benefits such as maternity leave, illness leave, injury compensation, and other relevant matters.

Although her stay abroad was not sponsored by the company, the company desires her services to continue even in her absence from the country. Therefore, the company is willingly accepting the associated risks.

Consider the numerous talented individuals within India who are seeking employment opportunities. It may be worth exploring options to offer these opportunities to someone else instead of causing inconvenience to her, especially since she left India and moved abroad for personal reasons.

Hope this message is clear.

Dear Siddiqui Gulam, though your questions have been answered already, I will restrict my reply to question number 4 only. Please note the following:

a) Tell the employee to put up a proper application for Working From Home (WFH). However, this home will be in South Africa. She should mention her postal address clearly.

b) If circumstances require her deposition before the inquiry of any kind, then she must travel to India at her own expense to depose before the inquiry. She will not be paid any TA/DA for this.

c) Who has given her a laptop? If the company has allotted it and if it becomes unserviceable, how will she work? Is the usage of a personal laptop permissible?

d) In South Africa, does she have an uninterrupted power supply and also the internet services of the required bandwidth? Who will bear the cost of internet services? I say so because in India, the internet charges are dirt-cheap and the same cannot be expected in any other country. What if there is a breakdown in power supply for longer hours?

e) Probably she is a non-ESI employee. In that case, has the company taken any medical insurance? If yes, then the insurance will be valid in India only. If she falls sick, who will bear the medical expenses, company or the employee? Will you give her an exclusive medical insurance policy that is valid in South Africa?

f) What about travel insurance while traveling to and return from South Africa?

Thanks,
Dinesh Divekar

In the case of converting her to a contractual or consultant role, do I still need to take care of her LTA, insurance, and maternity benefits?

LTA & Insurance Benefits

LTA & Insurance are non-statutory welfare benefits and are not binding in the case of a contractual or consultant role. However, your appointment order should specify this.

In one case that I dealt with, the employee had moved outstation after accepting the resignation but was interested in continuing as a Consultant. They were given a fresh appointment stating the new terms.

Maternity Benefits

Regarding maternity benefits, it is a statutory benefit. Regardless of the nature of the appointment, once there is an employer-employee (master-servant) relationship, there is no escape from due compliance.

NRI Status and Employment Considerations

Merely going abroad does not qualify an Indian resident as an NRI or a resident of another country. However, there are limitations in every segment under Indian laws. An establishment may allow work from home (WFH), but it must review this periodically. As soon as the employee's status changes to NRI or foreigner, their status will change in a broader context. They would be treated as a foreign employee under income tax, provident fund, and all other laws, which must be maintained by the establishment.