‘New normal’ post-pandemic working presents fresh challenges for human resources, says new IBA GEI report

Issues connected to the ‘new normal’ way of working following the global COVID-19 outbreak of December 2019 present fresh challenges for human resources (HR) law, according to the tenth annual report by the International Bar Association Global Employment Institute (IBA GEI). Remote working arrangements, the right to disconnect from work and data privacy challenges related to requirements to be tested or vaccinated are identified as three key issues facing the HR sector in the aftermath of the pandemic.

Todd Solomon, IBA GEI Co-Chair commented: ‘It is undeniable that the pandemic has permanently altered the way we live and work. Our tenth annual report, covering 2020 and the beginning of 2021, offers a valuable insight into how international HR law, including employment, industrial relations, discrimination and immigration, is adapting to the ongoing situation. Lawyers from 55 countries offered their responses on topical issues, with a focus on government-led initiatives and employers’ reactions to mitigate the health and safety issues surrounding COVID-19.’

Building on the historical perspective of previous reports, the IBA GEI Tenth Annual Report identifies global shifts and new developments in HR law over the past year. The most pertinent issues faced by multinational companies are examined in greater detail, with topics including COVID-19; employment disputes, dismissal and retirement; corruption and whistleblowing; the ‘gig economy’; flexible working and family-friendly policies; mental health and absenteeism; data protection, privacy and human rights; discrimination and diversity; artificial intelligence (AI) and technology; unions, collective bargaining and industrial action; banking reform and executive remuneration; the gender pay gap; and immigration and talent. The impact of recent political and world events, such as Brexit and trade conflicts between the United States and China, are also considered in the context of expected future HR challenges.   Faced with a global pandemic at the beginning of 2020, many countries implemented measures to reduce social interaction and contain the virus. Closing educational establishments, hospitality services and workplaces, preventing international travel and requiring individuals to quarantine all impacted the HR sector. A ‘new normal’ was established, where working from home became commonplace with some employers introducing a requirement for employees to test for COVID-19 prior to visiting the workplace.

Key findings of the IBA GEI’s tenth annual report around HR legislation issues associated with the ‘new normal’ way of working in 2020/2021 include: Remote working arrangements. The use of flexible working arrangements is increasing across the globe, in part due to the pandemic. Respondents from Norway, Switzerland and Ukraine specifically highlighted an expectation that remote working will continue in coming years. Notable regulations introduced in 2020/2021 included: in Finland, a bill introducing a definition of flexible working time arrangements and regulation on working time; in Luxembourg, a new framework agreement on teleworking accompanied by bilateral agreements with neighbouring countries (France, Belgium, Germany) to allow cross-border workers to continue working from home without being subject to the tax and social security systems of their country of residence; and in Chile, specific regulation defining the concept of telework and remote work, allowing parties to agree on a specific working schedule or to be excluded from it.

The right to disconnect. As remote working levels increased in 2020/2021, discussions on the health risks for employees with no clear division between work and home life continued to prevail. In Chile, France, Italy, Lithuania, the Netherlands, Peru, Spain and Ukraine, an express right to disconnect was introduced, whilst Colombia adopted guidelines. In South Korea, some companies have introduced rules prohibiting supervisors from engaging in work-related discussions with their subordinates after hours. In India, the implementation of an express right to disconnect is currently pending in legislative procedures. Similarly, the Canadian government established the Right to Disconnect Advisory Committee to find potential policy solutions to give workers in the federally regulated sector the right to disconnect. Data privacy challenges. With the rise of remote working, balancing employees’ right to privacy with employers’ interest in preserving productivity is becoming increasingly difficult. Respondents from many countries noted that there is not yet an adapted legal framework to address this issue. However, there are some exceptions. In Bulgaria, the Data Protection Commission has affirmed that there is no legal basis for allowing employers to require employees working from home to provide information about their health or the health of their family members. Respondents from Latvia and Portugal reported an increasing demand by employers for more control and monitoring of employees working remotely. Italy and Portugal noted an increase in the number of companies adopting internet policies governing their employees’ use of social media. Furthermore, the pandemic has raised privacy issues relating to the vaccination status of workers and companies’ right to require employees to be tested for COVID-19. As of December 2021, Italy requires employees to have a so-called ‘Super Green Pass’, meaning they must be certifiably vaccinated, recovered or tested. In Hungary, employers have the right to make it compulsory for employees to be vaccinated against COVID-19.

Björn Otto, Lead Author of the IBA GEI Tenth Annual Report, stated: ‘It was inevitable that the COVID-19 pandemic would have a significant impact on the global landscape of work. The long-term repercussions for governments, businesses, employers and employees remain to be seen, but the latest report from the IBA GEI offers an insight into the current state of HR law and how it is evolving. Viewed together with reports from previous years, this report will form empirical evidence of the adaptions taking place in these times of great uncertainty and unprecedented challenges.’

Other notable HR trends from 2020/2021 highlighted in the GEI report include:

Immigration law and mobility issues related to political and social developments, such as the US/China trade dispute and Brexit; A strain on retirement systems, raising of the statutory retirement age and/or incentives to work longer in numerous countries due to demographic change; Increased focus on mental health issues, with employers in several countries adopting stress policies and governments implementing guidelines to address the issue; The introduction of new data privacy regulations; New forms of court hearings, for example via video, to comply with social distancing regulations; Notable strike action in 2020 across the health, medical, aviation and catering sectors due to pandemic-related restrictions; The strengthening of protection for whistleblowers. European Union member states were required to implement the EU Directive (2019/1937) on the protection of persons who report breaches of Union Law by 17 December 2021; In some countries, laws on equal pay have had a positive impact, but overall the gender pay gap remains significant.

Formed in 2010, the IBA GEI aims to develop a global and strategic approach to the core legal issues involved in human resources, with a focus on employment, discrimination and immigration laws. The annual reports are designed to enhance the management, performance and productivity of organisations and help them to achieve best practice in their human capital and management functions. Since its establishment, the GEI has published a number of topical reports including Global Best Practices for Conducting Internal Investigations in 2021 and The On-Demand Economy in 2019.