The Covid 19 pandemic has forced employees across the globe to work from their home remotely, despite their willingness and regardless of whether the applicable regulations in their countries were suitable for this remote mode of work.
The case of this mode of work in Mexico is no different, because even though since 2012 there was a specific chapter regarding Home Office in the Federal Labor Law (main law for private sector employment relationships), those provisions were frankly anachronistic and unsuitable for the new challenges that this pandemic has put up.
Therefore, for the adoption of this mode of work, new specific provisions regarding Home Office or “Teleworking” have been just recently created and approved in the Mexican Congress, but until January 4th, 2021 when this blog was created, was not yet applicable. This transgression would also seem incredible, but it is true. After almost one year under a sanitary emergency that has completely change the way in which regular employment relationships were convened, Mexico did not change its regulations to adapt them to the new reality, in terms of what other American countries have done.
Until December 9th, 2020, the Senate of the Republic approved a law initiative to amend the Federal Labor Law and include specific provisions for Teleworking, which was previously approved by the House of Representatives, but was pending for approval and published by the President. The main topics under the new provisions are the following:
Teleworking is defined as the one which involves performing activities in places other than the establishment of the employer, using primarily information and communication technologies.
Occasional or sporadic activities are not considered teleworking, unless 40% of them take place at the employee's home or any other address chosen by the employee.
The change to this modality must be free and in writing (except in cases of duly accredited force majeure), with the right to return to the face-to-face modality of work environment, in terms of the mechanisms, processes and times agreed upon by the parties, promoting gender equity and equal opportunities between teleworking and face-to-face personnel.
A written contract is required, which includes the special characteristics of this type of work, such as: equipment and supplies to be provided to the worker, amount for payment of related services, mechanisms for communication at distance, and mechanisms for contact and supervision, always respecting the right to privacy of individuals.
Employers must: a) provide, install and maintain the equipment necessary for teleworking, such as computers, ergonomic chairs, printers, etc., and keep records of them; b) assume the costs derived from working through teleworking, including payment for telecommunication services (internet) and the proportional part of electricity; c) implement mechanisms that protect the security of information and personal data; d) respect the right to digital disconnection of employees at the end of their workday; and e) provide training and advice.
Workers should: a) take care of materials and equipment; b) inform in a timely manner the costs of related services; and c) address policies and mechanisms for the supervision of teleworking and protection of information and personal data.
An official Mexican standard would be issued with the special conditions of safety and health at work that includes the special risks in the modality of teleworking (such as ergonomic, psychosocial, and other factors that could cause adverse effects for the life, physical integrity or health of the employees), within the 18 months following the entry into force of the reform.
While this is a great step, its delay on being published encourages informality and does not contribute to promote “Decent Work” under the terms of applicable Conventions of the International Labor Organization.
Let us hope that the Federal government concludes the legislative process as soon as possible, because there is a long way ahead until employers and employees get used to this employment modality and new problems begin to arise after its implementation.
Author: Carlos Ernesto de la Puente Téllez (Senior Associate in Santamarina y Steta, Mexico City, Mexico)