On January 11, 2021, the federal government published a decree in the Official Gazette of the Federation, amending the Federal Labor Law (FLL) to regulate the terms and conditions, employer and employee obligations, and safety and health measures related to telework. Telework is regulated by a special chapter of FLL and the telework designation is applicable whenever work is performed more than 40 percent of the time at an employee’s home or at a domicile that the employee has chosen and on which the employee has agreed.
In compliance with the decree, on July 15, 2022, the Ministry of Labor and Social Welfare (Secretaría del Trabajo y Previsión Social or STPS) published the project of the Official Mexican Standard (Normas Oficiales Mexicanas or NOM), NOM-037, which established the workplace safety and health obligations for teleworkers and employers as follows:
- Maintain, and keep updated, a list of all teleworkers containing the requirements set forth in the telework standard.
- Ensure that the teleworker’s remote workplace has high-speed internet access and complies with occupational health and safety requirements, such as those regarding electrical installations, lighting, ventilation, and ergonomic conditions.
Employers may comply with these obligations by visiting the workplace or, alternatively, by implementing a verification checklist to ensure that the remote workplace meets the relevant health and safety requirements. Unless an employer complies with one of these obligations, the telework arrangement will not be lawful.
- Establish a telework policy that details the specifics, among others, of:
- The preventive actions the employer is taking with regard to safety and health issues;
- The mechanisms the employer is instituting to prevent teleworking employees from experiencing social isolation;
- Contact rules and procedures, as well as a description of how telework will be supervised;
- Work shift distribution, including the employee’s right to disconnect from work at the end of a work shift.
- Establish and document the differences between on-site work and telework, in addition to process changes and requirements.
- Provide the teleworkers with ergonomic chairs and other equipment and accessories that will support employees’ performance.
- Facilitate the conditions for an employer to visit the domicile in which telework is performed in order to verify compliance with all relevant safety and health requirements. Alternatively, teleworkers can personally apply the verification checklist mentioned among employer´s obligations.
- Comply with the employer’s telework policy.
- Provide written notice to the employer of any change of address or workplace.
- Inform the employer of any occupational hazards (both inside and outside the workplace).
- Comply with employer´s provisions regarding the protection of data and information in the performance of the employee’s activities, as well with the provisions on occupational health and safety.
Further, Project NOM-037 establishes and describes a guide of “Conformity Assessment Procedure” that applies to the inspection visits carried out by the STPS and to the services provided by the inspection units, with which an employer may contract. This is of relevance since the NOM-037 will guide employers on how to comply, serve as evidence of compliance with telework rules, and help employers avoid future fines that the STPS may impose if it determines noncompliance during an inspection visit.
Initially, telework seemed to offer employers and employees increased flexibility. Now, with the NOM-037, employees are burdened with additional complicated obligations, which may lead employers to think twice about whether implementing a teleworking modality would be in their interests.
According to Mexican law, the version of the NOM-037 that is published shall remain posted for a period of 60 calendar days. Comments or clarifications may be addressed to the National Advisory Committee for the Standardization of Occupational Safety and Health Conditions.
Ogletree Deakins’ Mexico City office will continue to monitor and report on developments related to NOM-037 and will post updates on the firm’s Cross-Border blog as additional information becomes available.
Almudena Cuesta-Fonticoba is a law clerk in the Mexico City office of Ogletree Deakins.