Note published on July 28 in El Economista, Capital Humano [Human Capital] Section by Gerardo Hernández
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Specialists in Labor law Agree that that the application of NOM-037-STPS-2022 entails a change in the manner in which teleworking is implemented and a greater burden for companies, although the measures taken are not entirely negative.
The Teleworking NOM [Official Mexican Standard] project, submitted for public consultation by the Department of Labor and Social Welfare (STPS) establishes the safety conditions under which remote work must be conducted in order to prevent accidents and illnesses, but it is probable that the application of the new regulation will entail an increased control over the work modality, a greater administrative burden for companies and an increased responsibility for employers in regard to the way in which this scheme is implemented.
Specialists in Labor Law consider that, in general terms, the project meets the expectations of the private sector for having a mechanism that guarantees the necessary measures for the care of safety and health in teleworking, but they acknowledge that their application will change the way of determining who qualifies to conduct their activities remotely.
Jimena Sánchez Argoytia, partner at the D&M Abogados Firm, explains that the objective of the standard is preventing that employers transfer the obligation of having a safe and healthy space to the employees. In this sense, the verification mechanisms that are being considered are aligned with this purpose.
“The purpose is to formalize the modality and provide certainty to employees in teleworking that they will have proper and sufficient tools to mitigate the risks. I believe that it does fulfill that purpose and it is a great starting point for the people who are going to be sent to conduct teleworking to have these proper aspects in order to provide those services”, says the specialist.
Nevertheless, Jimena Sánchez acknowledges that it is likely that there will be subjectivity in the application of the new rules at the moment of determining who complies with the necessary conditions for the performance of teleworking and that it will be difficult for this to be documented because it carries “great administrative burdens for companies that offer this modality. But it is something that needs to be done.”
For Sofía Gómez Bautista, Labor Practice Leader at Creel Abogados, in the regulatory sense, the standard addresses an important issue: the health and safety conditions of the place in which the employee wants to work.
“Formerly, we only used to say that if the nature of your position permitted it, you could go ahead and work remotely, but now we can see that if the nature does allow it, but you do not comply with the conditions of safety and health at the place, it will not be possible. The standard was proactive in proposing these parameters”, the specialist points out.
But it is also a fact that, in practice, the standard will only reflect a portion of the flexibility that exists today in remote work, because the new obligations that employers will have carry a greater control of the modality. “It will be complicated to formalize situations such as saying: I will leave for the beach on Friday, because a long weekend is coming, and I’ll work from there. On the contrary, it will entail a fairly high administrative burden.”
For now, the project for Standard 037 includes that the places in which people will conduct the work must be agreed upon with the employers and the employer must verify the health and safety conditions of each place in which teleworkers conduct their activities.
In this sense Alejandra Massud, partner at GLZ Abogados, considers that it will be complicated to maintain the flexibility that is now considered for remote work. “Formerly, it was sufficient for the person to make a request for working under that modality and for the employer to accept this request; now, this will not be sufficient, we would have to comply with the provisions of the NOM.”
Although this is not all negative, she emphasizes, because without this type of rules, we could also find scenarios in which people change the place in which they work without informing their employer and, when they are required to attend a meeting, it turns out that they are in another state.” “While it is true that teleworking is a different modality, it also carries responsibilities”, she adds.
Specialists agree that the verification that companies will conduct in regard to the health and safety conditions for teleworking require a greater control that was not truly observed up to this time, but this may not be entirely negative.
The position of the labor authority is that flexibility may not be prioritized over health, hence the importance of having clear rules in regard to the conditions under which the modality must be conducted in order to avoid risks to the detriment of the health of the workers.
Photographic evidence, a key part of the process
Alejandra Massud agrees that the Teleworking NOM is favorable for employees because it guarantees their safety and health, but there are other aspects that can be complex to guarantee and, therefore, there is room for improvement in the regulation.
“There may be a gap or omission, because perhaps the worker may not want the employer to come to his home but accepts self-assessment and perhaps states in it that he complies with all of the necessary conditions for working from home, but the reality is that he is working from the dining room of his house. I believe that photographs could provide support in this specific case”, states the specialist.
Jimena Sánchez also believes that photographic evidence can be essential for employers in the regulatory compliance of NOM-037, particularly because with the new regulation employers have the obligation of verifying the conditions reported by the workers.
In the event that an employer, she explains, allows a person to conduct his activities from home without meeting the necessary conditions, this not only carries a risk for the employee’s health and safety but also for the employer himself.
“The Department will conduct an inspection and when you want to accredit that these conditions are met you will not be able to do so, first because of the self-assessment list filled by the employee and because it is also established that the employer must provide documentary evidence. I would strengthen the evidence, perhaps requesting from the employee photographs and details of the characteristics of the place in which the service will be provided”, she specifies.
From the perspective of Sofía Gómez, one of the most important aspects that will change for employers with the standard is the need of having an updated list of teleworkers. “I believe that an aspect that must be taken into account is that this list must be updated every time that a new person joins the teleworking modality.”
On the other hand, an element that will also change in practice for companies is that they will have a specific teleworking policy, in addition to the fact that it will be an element that will help both parties as it is implemented, the specialist points out.