Note published on June 29 in Expansión, Carrera [Career] Section by Nancy Malacara.
Companies and employees must comply with a series of obligations and rights established in NOM-037. This includes a list of the home office workers and compliance with the right to disconnect.
In the midst of the growing use of the teleworking or home office mode in Mexico and of the publication of NOM-037, that regulates it, concern arises in regard to the rights and obligations that both companies and employees have in this work modality.
This Official Mexican Standard applies throughout the Mexican Republic and will enter into force next December. This standard, however, does not apply to all employees, but concerns those whose remote work represents at least 40% of the total of their working hours.
The obligations of the companies
Alejandra Massud, partner at the GLZ Abogados Law Firm and specialist in labor law, says that among the obligations of companies there is an obligation of having an updated list of the workers that conduct their work in this modality.
This list must include information such as the name of the worker, gender, marital status, activities performed, position profile, percentage of time working in the teleworking mode, contact telephone number, address, agreed workplaces and a list of the computer and ergonomic equipment provided.
In regard to the agreed workplaces, Jimena Sánchez, partner at the D&Mabogados Law Firm, makes emphasis on the fact that said locations must be fixed. During the pandemic, we used to go to a café or restaurant with internet connection, she says; the standard now establishes that the places that we provide our remote services from have to be established in a registry, in accordance with the Collective Bargaining Agreement (CCT) or the Internal Work Regulations (RIT).
Employers must guarantee the safety and health conditions at work, ensuring that electrical, lighting, ventilation facilities and the ergonomic conditions are appropriate, both at the workplace and at the places proposed by the workers for conducting their home office activities.
This means that the employer may conduct a physical verification and, as an alternative, this may be done through the application of a checklist, to be provided by the employer, by employees aspiring to enter into the teleworking mode.
“The validation of the checklist for the safety and health conditions in teleworking and for the evaluation of potential risks must be prepared by the employer or by whomever it may determine, such as professionals on the topic under it supervision”, explains Massud.
Additionally, employers must prepare a Teleworking Policy that stipulates the details and minutiae of this modality. “This policy must promote a culture of prevention of work-related risks and establish the platforms through which direct communication with people in the remote mode will be conducted”, said Sánchez.
Once it has been prepared, it must be implemented, maintained, and disseminated in the work center and with the employees that conduct their work in said modality.
Another of the commitments that must be made by the employer is the timely follow-up on work accident notifications reported by people in the home office mode or their families, always following the protocols established by the social security institutions.
Sánchez points out that employee training and capacitation are also an employer obligation, particularly in regard to recognizing hazards in the workplace, ergonomic risk factors and psychosocial risk factors that can be present in the home office.
The obligations of the workers
Employees, on the other hand, must facilitate the physical verification of the safety and health conditions at work or apply the checklist in this regard. This includes physical evidence in images, photographs or videos that show that the space in which the collaborator will provide his remote services is appropriate.
In regard to the rights of home office workers, the NOM-037 acknowledges that they are the same rights as those of on-site workers on an individual and on a collective basis. This includes the right to unionization, to collective bargaining and to contact with their co-workers.
Additionally, the right to disconnect is recognized, which means that the established times of the workday must be complied with and not participating in work activities outside of this workday hours, such as meetings or the use of computer equipment during vacations, leaves of absence.
The standard also establishes special protections for people who may suffer domestic violence, as well as the right of women during lactation to make pauses for feeding their children or extracting milk.
Likewise, the collaborator can speak up to request the payment of the proportional part of the costs of electricity and internet consumption, as well as tools and the necessary furniture to perform his work activities,
The objective of NOM-037 is to establish the safety and health conditions for the places in which teleworkers perform their duties, with the objective of preventing accidents and illnesses of psychosocial risk factors.
For their compliance, there will be agencies in charge of inspecting safety and health conditions. “When the company complies with all provisions, it will receive a certificate that must include all of the identification data of the verified center. It will be valid for two years, provided that there is no modification of the conditions that were the basis for it being granted”, explains Massud.
The aspects to be verified during the evaluation will be covered at the domicile of the work center, as applicable, through physical verification, documentary review, records, or interviews. Fines for non-compliance with safety standards to prevent risks at work range from 25,935 to 518,700 pesos, that is, from 250 to 5,000 times the Unit of Measurement and Update (UMA), that is equivalent to 103.74 pesos this year.
