The new provisions for home office are clear in the law, but the context of the pandemic has generated confusion in their application and, therefore, in compliance with the regulation.
Note published on March 22 in El Economista, Empresas [Companies] Section by Gerardo Hernández.
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Note published on March 21 in Factor Capital Humano, Leyes y Gobierno [Laws and Government] section by Gerardo Hernández.
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The time in which the reform on teleworking arrived brought a debate on whether the new regulation is applicable in a pandemic environment and, in consequence, what rules should be implemented nowadays. Specialists agree that the norm represents positive progress, but it left several loose ends.
For Carlos Ferrán Martínez, directing partner of Ferrán Martínez Abogados, the reform is positive, and it took into account the experience of home office during the pandemic. However, the first question that it generated was: when does it enter into force.
From a strictly legal point of view, he explains, the reform on teleworking is already in force. But this interpretation clashes with the position that even the labor authorities have put forward: the norm is designed for a context without a pandemic.
“We come upon the first loose end: Is it in force or is it not in force? If one is very formalistic, there is no doubt that it is in force. But it is also risky to assume that all of us who are working from home are now teleworkers”, he points out.
Sofía Gómez Bautista, a lawyer at the Creel Abogados Firm, believes that the reform has positive elements. “For the first time, the Federal labor Law gave both the employer and the worker the power to agree on terms and conditions”, only, it lacked precision in some respects, one of them being its application in a context like the current one, she explains.
“Establishing that compliance with some of the provisions does not apply in cases of force majeure would have been the most appropriate thing to do. The law itself should have specified whether all provisions apply or not during the pandemic”, the lawyer emphasizes.
Officials from the Department of Labor and Social Welfare (STPS) have clarified that some provisions are not applicable during the pandemic; like providing an ergonomic chair, for example, this obligation will take effect when the Teleworking Standard comes into force next year.
“This is a reform for after the pandemic and for posterity. The pandemic is cause for a force majeure status, it is something unusual that will pass, but what will remain is teleworking. The pandemic has given great impulse to teleworking, but in a forced manner; once the pandemic is over, we will be able to see the true extent of teleworking”, said Alejandro Salafranca, head on the Unit for Dignity in Labor of the STPS.
According to the authorities, the applicable provisions are: respecting working hours, having a gender perspective that will allow the conciliation of personal life and working and, most importantly, absorbing the costs in which a working person may incur due to teleworking.
And what about occupational hazards?
The topic of occupational hazards is one in which there is no clarity either. The reform established a term of 18 months for the STPS to design a standard for safety and health in teleworking.
The absence of the standard in an environment in which covid-19 contagions continue to occur is one of the factors that prevent classifying contagion of this disease as an occupational hazard, warns Héctor de la Cruz, a lawyer at the D&M Abogados Firm.
“Right now, there is no legal framework that allows us to know whether covid, being a pandemic and infectious disease, can be considered one of the diseases related to teleworking. The worker does not set up a branch of the company in his home and there is no way for the employer to impose control measures to verify the health of the people who enter the domicile”, he explains.
In the opinion of José Manuel Lucio Olvera, founding partner of Consultoría M&E Lucio Asociados, occupational hazards in the home office mode are a subjective element, at least for now.
“In the case of a teleworker that only performs administrative duties from home and is not required to leave the home to conduct work on the field, it is very complicated to qualify contagion as an occupational hazard”, he concludes.
