THE SENATE OF THE REPUBLIC APPROVES THE DECISION SENT BY THE HOUSE OF REPRESENTATIVES THAT REFORMS ARTICLE 311 AND ADDS CHAPTER XII BIS TO THE FEDERAL LABOR LAW, ON TELEWORKING MATTERS
On December 9, 2020, the Plenary Session of the Senate of the Republic approved, in its general and in its particular aspects, with 91 votes, the memorandum that reforms Article 311 and adds Chapter XII BIS with Articles 330-A, 330-B, 330-C, 330-D, 330-E, 330-F, 330-G,330-H, 330-I, 330-J and 330-K to the Federal Labor Law on teleworking matters. Now it only remains for President Andres Manuel López Obrador to promulgate the reform for the measures to take effect.
The new provisions would distinguish what we currently know as working from home and teleworking, in a manner in which the latter will grant all of those workers providing their services under this modality rights not previously considered in our Federal Labor Law.
It is important to emphasize that persons under the modality of teleworking will be considered as such as long as they carry out their working relationships, in more than forty percent of the total time, from their home or the domicile of their choice; therefore, when it is carried out occasionally or sporadically, it will not be considered as telework.
This distinction between the home of the employee or the domicile of his choice provides, in turn, a sub-modality of teleworking, just as it already exists in other jurisdictions, since the person that provides his services under this modality may choose the place from which he would be performing his activities; however, it is not specified whether this “choice” of domicile is unilateral or whether an agreement with the employer must be necessarily reached.
This reform bill defines the teleworker and also the concept of information and communication technologies, including the services, infrastructure, networks, software, computer applications and devices with the purpose of facilitating the tasks and functions at the work centers, as well as those that are needed for information management and the transformation of information, in particular, the technological components that allow the creation, modification, storage, protection and retrieval of said information.
It establishes, as a requirement, that working conditions under the modality of teleworking must be set in writing by means of a Contract that establishes:
- The nature and characteristics of the work:
- The work equipment and supplies, including the ones related to the health and safety obligations, that will be provided to the teleworker.
- The description and the amount that the employer will pay the teleworker for the concept of payment of services related to telework conducted at the domicile.
- The contact and supervision mechanisms between the parties, as well as the duration and distribution of the working hours, as long as they do not exceed the legal maximums in addition to abiding by the provisions of Article 25 of the Federal Labor Law.
In this manner, the modality of teleworking would become a part of the Collective Bargaining Agreement and employers that do not have said Agreement must include teleworking in their Internal Work Regulations.
Those employers that are in charge of employees under this modality will have to comply, in addition to those general obligations toward any worker, with several others of a special nature:
- Providing, installing and being in charge of the maintenance of the computer equipment that is necessary for teleworking;
- Providing ergonomic chairs, among others;
- The employer will assume the costs deriving from teleworking, including the payment of telecommunication services and the proportional part of electricity, which means that the employer must pay the proportional portion of the electricity and internet bills of the worker performing his duties in the teleworking mode.
- Keeping a record of the supplies provided to the teleworker in compliance with the provisions in work safety and health matters established by the Department of Labor and Social Welfare, which must be fully complied with, since Labor Inspectors have the special attribution of verifying that employers keep these records.
- Implementing training and advisory mechanisms to guarantee the proper use of information and communication technologies.
- Implementing mechanisms that protect information security, personal data and guarantee the workers’ right to privacy, in line with the applicable legal framework on personal data protection matters.
- Respecting the right to disconnection, which means that the workers will have the right not to answer communications such as emails, messages, work calls, among others, outside of working hours or at the end of their workday, to avoid infringing upon their leisure time as well as on the workers’ personal and family privacy.
Meanwhile, the teleworker will have the following obligations:
- Caring for, keeping and safeguarding the computer or data processing equipment provided by the employer.
- Obeying and behaving in accordance with the provisions on labor safety and health established by the employer.
- Taking into account and using the mechanisms and operating systems for the supervision of his activities;
- Taking heed of the data protection policies and mechanisms used in the performance of his activities, as well as of the restrictions on their use and storage.
It is important to emphasize that the change from the presential modality to teleworking must be voluntary and established in writing (except in cases of force majeure) and the parties will have the right of reversibility to the presential mode; to this end, they may reach an agreement on the necessary mechanisms, processes and timeframes for making their will to return to this modality effective.
Special conditions on safety and health matters for teleworking will be established by the Department of Labor and Social Welfare in an Official Mexican Standard that must take into consideration ergonomic, psychosocial factors and other risks that could cause adverse effects on the life, physical well-being or health of the teleworkers. The abovementioned Standard must be published within 18 months after the entry into force of this reform.
Throughout this 2020 and in face of the Covid-19 pandemic, we realized how ill prepared we were to work under a remote work modality; therefore, the regularization on the use of information and communication technologies as teleworking tools provides numerous social and labor benefits, as employers would have a greater benefit in productivity, fewer general costs and access to a broader, more diverse, motivated and trained workforce.
Teleworking is an integral strategy to face environmental, urban congestion problems and which seeks to promote more inclusive work opportunities. As long as there are clear conditions for the provision of services, as well as measurable objectives, teleworkers may benefit by having a better balance between their work and private lives, obtaining savings thanks to the reduction of expenses deriving from needs such as the use of transportation, parking, food and the reduction of time spent in transportation, among others.
It is important that companies start including the applicable clauses in individual employment contracts, in collective bargaining agreements and/or internal work regulations as well as preparing policies in regard to teleworking.