If 40% of working hours are not covered at home, then it is not considered to be teleworking

Note published in El Economista, Empresas [Companies] Section by María del Pilar Martínez.
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Not all work conducted at home can be considered as teleworking, since the new law establishes that, in order for a contract of this nature to exist, more than 40% of working hours must be covered from home, and this does not happen in all cases.

Not all work conducted at home can be considered as teleworking, since the new law establishes that, in order for a contract of this nature to exist, more than 40% of working hours must be covered from home, and this does not happen in all cases.

According to specialists, the new law establishes rights and obligations for those who agree to sign a contract for work conducted from home; nevertheless, at this time we are living a fortuitous event “due to force majeure” because of the pandemic, creating the obligation of carrying out certain activities from home, but not of establishing a contract under the concept of home office.

Additionally, labor lawyers believe that in the presence of agreements for workers to attend their workplace three days a week, abiding by the health measures established by the health authority, there is no reason to establish a labor relationship of teleworking.

“In order for the obligations associated with teleworking to be required from employers, the teleworker must provide his services in more than 40% from his home or from the place designated for these effects. There are many cases in which work is conducted from home, but the quota is not met; for example, in a five-day working week in which three days of work are conducted at the office, then, in this case, it cannot be considered as teleworking”, explained Germán de la Garza de Vecchi, of the Deloitte Legal-Mowat Firm.

Héctor de la Cruz, a labor specialist, said that “the new Article 330 A states that work is not considered to be teleworking when the worker conducts his remote activities in up to 40% of his working hours; that is, over 40% in home office will be considered as teleworking and, therefore, the new rules apply; for example, if a person performs 35% of his work in home office and the rest in person at the worksite, teleworking does not apply to this person and his employment conditions do not change and, therefore, the employer is not required to pay electricity or internet or provide the ergonomic chair, etc.”

Ricardo Martínez, of D&M Abogados, said that working from home in these times is not a strategy taken by companies, it is done for health and safety reasons; and they are “working and operating in a proper and timely manner, which has brought advantages, of course, but it was not something that was decided 100% within the company, as a fundamental strategy.”

Last Tuesday, January 12, Article 311 of the Federal Labor Law on Teleworking matters came into force, as did the obligations both for employers and workers. Therefore, employers have the obligation of providing, installing and being responsible for the maintenance of the necessary equipment, such as computer equipment, ergonomic chairs, printers, as well as receiving the work and for the payment of salaries in the manner and on dates that have been agreed upon.

Additionally, they must assume the costs of services associated with the work performed, such as the payment of telecommunication services and the proportional part of electricity and of implementing mechanisms that preserve the security of the information and data used by the employees.

“The health emergency has demonstrated the validity of home office work, a tool in which technology will continue to play a crucial role, not only allowing connectivity for employees located outside the offices but also favoring a new work organization and guaranteeing data security and privacy”, pointed out Martha Barroso, director of People & Culture for ManpowerGroup Latinoamérica.

The sectors with the greatest tendency to adapt properly to remote work are cybersecurity, business transformation, accounting and sales; collaborators have the benefit of a lower probability of requiring transportation, a lower exposure to risks, more time for themselves and the capability of managing their times in regard to how and when to work.