The term granted by the 2021 reform on home office for the Department of Labor to issue an Official Standard that regulates the health and safety aspects in remote work expires in July of this year.
What is considered to be a work accident when working from home? What elements will determine the existence of a risk? These are some of the questions that as of this moment have no clear answers and the Official Mexican Standard (NOM) must answer them.
Starting on the date of its entry into force, the reform on teleworking gave the Department of Labor and Social Welfare (STPS) 18 months to issue a standard regulating the health and safety aspects in remote work, a term that ends in July of this year.
From a legal and occupational health perspective, specialists agree that the design of the NOM on Teleworking represents a significant challenge given elements such as the absence of control of employers at the homes, the flexibility that remote work entails, the limits for considering a situation to be a work accident, among other aspects.
Nevertheless, the absence of the regulation on health and safety in Teleworking generates an environment of uncertainty and a clash of interpretations about what should be considered to be a work accident and a work risk in this booming modality.
“There is little clarity, particularly on how to report an occupational hazard to Social Security. We do not know how to classify it, whether or not to give it the connotation of risk due to the simple fact that it happened at the home of the collaborator, even when it was not related to his activities or whether we have to limit ourselves to those activities that he should be providing remotely”, explains Jimena Sánchez, partner of the D&M Abogados Firm.
From the perspective of the specialist, there is also uncertainty around the role that the workplace Health and Safety committees will play and the measures that will be implemented to prevent risks
For Sara Morgan, consultant and specialist in Labor Law, part of the challenge will be the prevention of occupational diseases related to home office. From ergonomic problems or damage to the auditory system due to the use of earphones, this modality entails degradations of the physical and mental health of the workers, which must be captured in the pending regulation.
“Events are hard to prove. If a worker falls down at home, an inspection cannot be conducted to determine the facts and the work accident is linked to the Commission on Safety and Hygiene and it is not possible to intervene inside a home in order to determine whether the worker suffered an accident, it is a point of teleworking that needs to be covered”, she states.
In legal terms, Jimena Sánchez considers that the NOM on Teleworking must take the following into account:
- Linking the accidents with the activities being performed
Taking the trajectory to the workstation and other types of trajectories to be covered into consideration, such as getting up to get water or to go to the restroom
Clearly specifying the characteristics that an ergonomic chair must comply with
- Defining the mechanisms that employers will have to inspect that teleworking is conducted under proper conditions.
- Acknowledging that flexibility may blur fixed working hours
- Specifying the criteria that will be taken into account to qualify occupational hazards
- Establishing the measures that will be implemented to mitigate the risks
- Taking into account reference guides that allow identifying whether conditions are optimal for working in the home office modality
“The standard no longer needs to regulate topics on the teleworking mode but must limit itself exclusively to health and safety issues”, says the lawyer.
For her part, Sara Morgan considers that the NOM on teleworking must include aspects such as the limits in regard to time and levels for the use of earphones or lighting conditions.
A perspective on labor health and culture
Despite the fact that the reform of January of 2021 established that people must spend over 40% of their working hours outside of the work center in order for work to be considered as teleworking, Jorge Gutiérrez Siles, senior consultant at Kaysa, believes that the new standard must take all of the people who work remotely into consideration, otherwise, those who work under the home office modality in a smaller percentage of time would remain unprotected.
“Another item that the standard should take into consideration is the link with other standards, particularly with NOM-035 because we could currently not see them as two different standards. That is, we need social support, the manner in which we will generate a sense of belonging and leadership, training, acknowledgement within teleworking”, explains the specialist.
Hosanna Rodríguez, president of the National Federation of Health at Work (Fenastac), believes that the psychosocial factors must adapt to the modality of teleworking because they are the most prevalent risks among teleworkers. “The psychosocial risk increases, because home office workers are working blindly, having to trust what they are told by the plant, and they tend to become very highly stressed.”
Psychosocial risks are all of those factors that can affect the mental health of the workers, causing stress, depression, anxiety or sleep cycle disorders. Some of these can be due to work overloads, the extension of working hours, poor leadership or the lack of proper tools.
“The Standard needs to take possible risks into account, from the work being conducted on a slippery surface, to the ergonomic risks caused by the absence of appropriate furniture or psychosocial risks. I have noticed that home office workers behave differently”, states Hosanna Rodríguez.
From the point of view of Jorge Gutiérrez, it is also important that the NOM on Teleworking precisely defines the investment to be made by employers in terms of furniture in order to guarantee a safe infrastructure for collaborators working under this modality.
Various specialists say that the preliminary draft presented by the STPS created confusion and included elements outside the regulation of health and safety in remote work. For now, the agency is reviewing the contents of said document, hand in hand with experts and actors of the labor arena with the objective of presenting a formal proposal in April.