REVIEW OF THE MONTH: TELEWORKING REFORM (HOME OFFICE)
On January 11, 2021, a reform to the Federal Labor Law was published in the Official Gazette of the Federation, which regulates an extraordinary situation that arose with the pandemic and which will be the new normal in the future, known as tele work or work at home.
Article 311 is amended and added with a Chapter XII Bis referring to Telework.
To begin with, home work is defined as that which is usually carried out for an employer, at the worker’s home or in a place freely chosen by him, without immediate supervision or direction from the person providing the work.
It is established that the provisions of Chapter XII Bis shall be governed by labor relations that take place more than forty percent of the time at the home of the worker under the teleworking modality, or at the home chosen by the latter.
It is noted that the working conditions must be included in a written contract, which in addition to the general clauses of all employment contracts must also state:
- The equipment and work supplies, including that related to the health and safety obligations that are delivered to the worker under the telework modality;
- The description and amount that the employer will pay to the worker under the telework modality for the payment of services at home related to telework;
- The mechanisms of contact and supervision between the parties, as well as the duration and distribution of schedules, as long as they do not exceed the legal maximums.
Under the telework modality, employers will assume additional obligations such as:
- Provide, install and take care of the maintenance of the necessary equipment for teleworking such as computer equipment, ergonomic chairs, printers, among others; in this case when the worker requests it;
- Assume the costs derived from work through teleworking. In this case, they must be proportional in all cases and not only the electricity service provided for in the reform;
- Keep a record of the supplies delivered to the workers;
- Implement mechanisms that preserve the security of information and data used by workers;
- Respect the right to disconnection of workers in the teleworking modality at the end of the working day;
- Register workers in the teleworking modality to the mandatory social security regime, and
- Establish the training and advisory mechanisms necessary to guarantee the adaptation, learning and adequate use of information technologies by workers in the teleworking modality.
For their part, workers will have the following special obligations:
- Take the greatest care in the storage and conservation of the equipment, materials and supplies that they receive from the employer;
- Provide timely information on the agreed costs for the use of telecommunications services and electricity consumption, derived from teleworking;
- Obey and behave in accordance with the provisions on safety and health at work established by the employer;
- Attend and use the mechanisms and operating systems to supervise their activities, and
- Attend the data protection policies and mechanisms used in the performance of their activities, as well as the restrictions on their use and storage.
It is established that the change in the modality from face-to-face to teleworking must be voluntary and established in writing in accordance with Chapter XII Bis of the Law, except in cases of duly accredited force majeure. In any case, the parties will have the right of reversibility to the face-to-face modality, for which they will be able to agree on the mechanisms, processes and times necessary to make valid their will to return to said modality.
Likewise, the reform provides that the mechanisms, operating systems and any technology used to supervise teleworking must be proportional to their objective, guaranteeing the right to privacy of workers under the teleworking modality, and respecting the applicable legal framework regarding the protection of personal data. That is, they may only use video cameras and microphones to supervise teleworking in an extraordinary way, or when the nature of the functions performed by the worker under the teleworking modality requires it.
The Ministry of Labor and Social Welfare, through an Official Mexican Standard, will verify compliance with the conditions regulated in Chapter XII Bis of the Federal Labor Law, which must consider ergonomic, psychosocial factors, and other risks that could cause adverse effects on the life, physical integrity or health of workers under the telework modality.
The Labor Inspectors will have the powers to verify strict compliance with the obligations established in Chapter XII Bis of the Law.
Author: Lic. Verónica Grajeda Villalobos