Law regulating teleworking enters into force; the STPS must publish safety NOM.

One of the greatest challenges in implementing the new labor regulation will be the accreditation of occupational diseases and accidents.

Note published in El Economista, Empresas [Companies] Section by María del Pilar Martínez.
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In order to move into teleworking (home office), as of this Tuesday, January 12, employers in the country must take into consideration aspects such as: establishing contracts in writing, granting the same salary and benefits, respecting the right to disconnection at the end of the working hours and assuming the costs deriving from teleworking – the payment of telecommunication services and part of the electricity – as this is established by the new law on teleworking promulgated by the Federal Executive Power.

It should be noted that the Department of Labor and Social Welfare [STPS] will have 18 months, from its entry into force, to publish an Official Mexican Standard (NOM) regulating obligations in regard to occupational safety and health matters for teleworking.

In this regard, the Minister of Labor and Social Welfare, Luisa María Alcalde Luján, stated that this law is quite a challenge for the labor arena “Teleworking grew significantly as a consequence of the pandemic, a fact that was resolved by the legislature and for which a law was approved, implying a deeper discussion, even involving work groups with the participation of the sectors in order to ground the concepts already defined by the legislature”, she said to El Economista. The abovementioned NOM must take into account ergonomic, psychosocial factors as well as other risks which could have adverse effects on the life, physical integrity or health of the workers that perform their duties under the modality of teleworking.

A good negotiation

In regard to that which for some specialists carries an important implication in the costs of labor, there are those who believe that it is possible to conduct good negotiations with the workers – either individually or through union representation – in order to reach agreements that allow the use of this work mode.

In this sense, Germán de la Garza de Vecchi, of the Deloitte Legal – Mowat Firm, said that it is a difficult moment within the context of the pandemic, “and it could even discourage the use of this mode and, naturally, several of its benefits are lost, added to the fact that the reform is not completely clear in some cases, which gives rise to interpretations, particularly in regard to the manner in which the proportional payment of electricity consumption should be made.”

For his part, Héctor de la Cruz, of the D&M Firm, said that “complying with the obligations of a new law, in a context in which there is an increase of the minimum wage and the imminent regulation of outsourcing, poses a complex outlook for employers in 2021, especially if it is taken into consideration that, in many cases, home office will become a permanent modality for workers. Regarding occupational hazards, a challenge is also posed, as it will be complicated to identify the origin of the disease and/or accident and whether it was related to the activity carried out as a result of work.”

Given this situation, he explained it is important to wait for the respective NOM. Additionally, as of this Tuesday, labor inspectors can verify whether employers are complying with the law and impose fines if they detect any irregularity.

Meanwhile, Alfonso Bouzas, coordinator of the Labor Observatory, said that the law comes at a bad time but, given the international experiences that have worked, “we must be open, now more than ever, to these changes and proposals that involve modifications, and not only in regard to teleworking, but also in regard to work on platforms and subcontracting; employers and workers must be open, as no rigidity will benefit anyone, not the workers, not the employers, not the unions; it is the moment to open up and be flexible.” He added that companies have the possibility of negotiating with workers the scheme that they can use “the objective is not to place companies in a tight spot but having a new law that meets the needs in face of a context in which the pandemic has forced moving work to the home”, said Bouzas.