On December 9, 2020, Mexico’s Senate of the Republic approved amendments to Article 311 and added Chapter XII Bis of the Federal Labor Law (FLL), on teleworking. If President Andres Manuel López Obrador approves the bill, it will become effective the day after it is published in the Official Journal of the Federation (Diario Oficial de la Federación).
The following frequently asked questions and answers may be helpful to employers that are, or may be considering, providing telework arrangements for their employees.
Question 1. What is the definition of “teleworking”?
Answer 1. Teleworking refers to a worker’s performance of paid work activities in places other than the employer’s establishments. Under a teleworking arrangement, the physical presence of the worker is not required in the workplace. Information and communication technologies would be the primary means for contact and instructions between the teleworking employee and the employer.
Q2. If an employee performs his or her work activities from a place other than the company’s facilities or employer’s workplace, would the employee be considered to be teleworking?
A2. Not necessarily. To be considered telework, work must be performed more than 40 percent of the time at the employee’s home or at the domicile chosen by the employee. Working conditions that regulate telework must be in writing.
Work performed remotely only occasionally or sporadically would not be considered telework.
Q3. Is work performed at home due to the COVID-19 pandemic considered teleworking?
A3. No. The bill does not consider work performed remotely in compliance with COVID-19–related health orders to be telework. Instead, remote work due to the pandemic would be considered an exceptional situation determined by the health authorities, rather than a work arrangement agreed upon between the employer and the employee.
Q4. Does the bill require a new individual employment contract for this type of employment relationship?
Q4. Yes. However, the legislation would also allow an employer and employee to modify an existing individual employment contract stating the conditions that would prevail during teleworking in accordance with the minimum requirements established by the FLL, such as: (i) characteristics of the work, (ii) salary and payment conditions, (iii) equipment and work supplies, (iv) description and amount of telecommunications and electricity services expenses to be covered by the employer, (v) mechanisms for contact and supervision between the parties, and (vi) other conditions established by the parties.
Q5. In addition to the agreement between the employer and employee, should companies include teleworking in their policies and other guidelines?
Q5. An employer may wish to establish a policy on teleworking. Where relevant, the telework policy would be required to be included in a collective bargaining agreement and in the employer’s internal work policies.
Q6. What are employers’ obligations regarding equipment needed to telework?
A6. The bill requires employers to provide, install, and maintain the equipment necessary for teleworking, such as computer equipment, ergonomic chairs, and printers. Employers must also keep a record of the telework-related supplies delivered to an employee.
According to the bill, employers are also required to reimburse an employee for all telework-related costs, such as those for telecommunication services and the proportional telework-related cost of electricity. The bill requires employees to timely inform their employers of the costs to be reimbursed. The parties would also be required to include their costs in their contract or agreement.
Q7. What is the right to disconnect?
A7. The right to disconnect is the right of employees under the telework arrangement to disconnect from telework at the end of the working day. That is, the employee would provide his or her services during the working day and would not be obligated to be available at all times outside of his or her regular business hours merely because he or she is telecommuting.
Q8. Is the change from onsite work to teleworking compulsory?
A8. No, it is voluntary and must be in writing.
Q9. If an employee who works at the employer’s premises switches to a teleworking arrangement, can the employee later return to the onsite work arrangement?
A9. Yes, the parties have the right to revert back to the onsite work arrangement. If they agree to an on-site work arrangement, they can agree on the mechanisms and times necessary to make the return to such an arrangement valid.
Q10. Can employers use video cameras and microphones to supervise teleworking?
A10. Employers may supervise employee in this way only in extraordinary situations or when the nature of the functions performed by employees under the telework arrangement requires such supervision. If employers choose to supervise employees in these ways, they must maintain the privacy of their employees.
Q11. Are there differences between an employee’s onsite work arrangement and telework arrangement?
A11. No. An employee in a teleworking arrangement must enjoy the same rights and employment opportunities, including the social security benefit, as an employee working onsite.
Q12. When would the teleworking requirements become effective?
A12. The teleworking requirements would take effect the day after the bill is published in the Official Journal of the Federation.
Iván Andrade Castelán is a law clerk in the Mexico City office of Ogletree Deakins.