[co-author: Erick Fernández Mata]
On December 9, 2020, Mexico’s Senate approved a bill amending the Federal Labor Law (FLL) regarding telework, which the House of Representatives passed the day before. While President López Obrador could return the bill to Congress with suggested changes, he is expected to sign and send the bill for publication in the Official Gazette of the Federation. The changes would take effect the day after publication.
The amendments create a new chapter for the FLL, which focus mainly on regulating the conditions, obligations and rights of teleworking. Under these new provisions, telework is understood as the performance of paid activities, under the employer’s direction, in a place other than the company’s or employer’s facilities, while using information and communication technologies. These working conditions must be in place 40% of the time during the employment relationship to be considered telework; such working conditions performed occasionally or sporadically will not qualify.
Employers would have new obligations to employees under this bill, including the reimbursement of certain expenses related to teleworking. These expenses include, where appropriate, the payment of telecommunication services (such as cell phone and internet) and the proportional cost of electricity used for telework purposes. In addition, companies must provide the equipment necessary for teleworking (including computer equipment, ergonomic chairs, printers, and any other equipment that is necessary for the provision of services), and keep a record of the supplies delivered to workers, in addition to respecting an employee’s right to disconnect at the end of the work day.
On the other hand, workers would also have to observe and comply with certain obligations, which include taking care of the goods and work tools delivered by the employer and reporting the costs of services derived from teleworking.
Employment relationships involving telework would need to be established by written agreement, which must specify the work equipment and supplies delivered to the teleworking employee, description and amount that the employer will deliver to the worker as payment for services performed at home, in addition to the contact and supervision mechanisms governing the telework arrangement. If there is a collective bargaining agreement in place that implements a teleworking modality, this must be included in the telework agreement. In the absence of a collective agreement, companies will be obligated to include teleworking within their internal work policies.
The bill contemplates that, for the transition from an in-person work modality to a telework one, the worker’s consent is required, except in cases of force majeure, as has been the case during the COVID-19 health emergency. In addition, if a temporary change to a teleworking scheme is foreseen, the parties must agree to the terms, processes, and times for returning to an in-person arrangement.
While the new provisions contemplate the possibility of using video cameras and microphones in order to supervise teleworking, these may be used in extraordinary circumstances only, or when the nature of the duties to be performed so requires.
Lastly, in order to regulate the special health and safety conditions for this type of work, the Ministry of Labor must issue, within 18 months after the entry into force of this reform, an Official Mexican Standard (“NOM”, by its acronym in Spanish) that will regulate ergonomic and psychosocial factors, as well as other risks related to the performance of telework.
If this reform takes effect as expected, employers should consult with counsel in reviewing or developing policies and agreements that regulate teleworking for compliance with the new obligations.
