On January 11, 2021, the Decree amending Article 311 was published in the Official Gazette of the Federation and adding Chapter XII Bis of the Federal Labor Law, on Teleworking, the above with the purpose to regulate this modality under which workers may work from their home or in a place freely chosen by them.
The relevant points of these reforms are the following:
1.- Regarding Telework, the following definitions are established:
- Telework: it is defined as a form of subordinate labor organization that consists of the performance of tasks in places other than the employer’s establishment, so that the physical presence of the worker is not necessary in the workplace and instead they are used Information and communication technologies for contact between the worker and the employer.
- Worker under the Teleworking modality: will be the person who provides their personal, paid and subordinate services in a place other than the workplace, and who uses information or communication technologies.
- Information and communication technologies: will be the set of services, infrastructure, networks, software, computer applications and devices that are intended to facilitate the functions in the work centers, as well as all those technological components that allow creating, modifying, store, protect and retrieve information related to its functions.
- These provisions will govern those labor relations that are developed at the worker’s home or at the home chosen by him, in more than 40% of the time.
- Telework will not be considered that which is carried out occasionally or sporadically.
- The conditions under which Telework will be carried out must be established in a contract. Both the worker and the employer must keep a copy of the contract.
- If there is a collective bargaining agreement, the Teleworking modality must be part of it and a free copy must be delivered to the worker.
If the employer does not have a collective bargaining agreement, teleworking must be included in the internal work regulations, as well as establishing contact mechanisms between workers who are working under this modality.
- Special obligations are generated for both the employer and the worker who is working under the Telework modality: Special obligations of the employer:
- Provide, install and take care of the maintenance of the necessary equipment for Telework.
- Assume the costs derived from Telework (payment for telecommunication services and proportional part of electricity).
- Implement information security mechanisms
- Respect the right of the worker to disconnect at the end of the working day.
Special obligations of the worker:
- Care and conservation of the equipment and materials received from the employer.
- Report the costs derived from Telework on the use of telecommunications services and electricity consumption.
- Attend data and information protection policies and mechanisms implemented by the employer.
- It is established as a special power of the Labor Inspectors to validate the due fulfillment of the special obligations of both employers and workers.
It is important to mention that although this Decree came into force on January 12, 2021, the Federal Executive Power will have a period of 18 months (counted from the aforementioned date) to publish an Official Mexican Standard in which they are regulated Obligations regarding health and safety for Teleworking.
Gloria Ponce de León & Hernández