OFFICIAL MEXICAN NORM NOM-037-STPS-2023: TELEWORKING—SAFETY AND HEALTH CONDITIONS AT WORK

Luis Regalado

1 year ago

Dear clients and friends,

In compliance with the January 2021 reform to the Federal Labor Law on the topic of teleworking (known as “home office”), the official Mexican norm (Norma Oficial Mexicana) NOM-037-STPS-2023, entitled “Telework—Conditions of Safety and Health at Work” (hereinafter “the NOM”), was published in the Federation Official Gazette on June 8, 2023. It will enter into force in December, 2023.

It is important to note that the NOM applies to all workplaces that have employees in teleworking modality. The NOM defines workers’ right to disconnect to leave work—including disconnecting from information and communication technologies (ICT)—and to abstain from participating in any type of communication with the workplace subsequent to the end of the working day, during nonworking hours, and while on vacations and permitted leaves of absence.

The NOM also establishes the Checklist of Safety and Health Conditions in Telework, developed by the Safety and Hygiene Commission, as a tool for evaluating whether a workplace provides safe and healthy conditions for the performance of telework.

The main elements of the NOM are described below.

Obligations of the Employer

Maintain an updated list of employees under the telework modality
Provide connectivity for the use and management of ICT and maintain adequate safety and health conditions at work, emphasizing the good condition of electrical installations and appropriate lighting, ventilation, and ergonomic conditions
Establish and disseminate a teleworking policy to prevent occupational risks by ensuring safety and health at work; establish mechanisms of communication with employees under the teleworking modality to prevent their social isolation
Recognize circumstances related to gender and enable employees to reconcile teleworking with their personal lives
Establish mechanisms for reversing teleworking (including temporarily)
Comply with the Checklist of Safety and Health Conditions in Telework
Enable the Safety and Hygiene Commission to validate the checklist of compliance with safety and health conditions in telework (including photographic or video evidence); the employer may choose to:
a) visit the proposed workplace where telework will be done (with the prior authorization of the applicant to be employed under the telework modality and with the facilities that the applicant provides)

b) provide the Checklist of Safety and Health Conditions for Telework to the applicant employee under the telework modality so that the applicant employee can independently determine whether the requirements of safety and health at work are fulfilled

The independent use of the Checklist of Safety and Health Conditions for Telework does not transfer to employees under the telework modality the responsibility for verifying the safety and health conditions of the workplace nor that of defraying adjustment costs.

In the event that the workplace proposed by the applicant employee under the telework modality does not meet the workplace safety and health conditions, telework cannot be carried out.
Provide the following to employees under the telework modality:
a) an ergonomic chair or one appropriate for the activities to be carried out

b) necessary supplies for its adequate performance

c) additional adjustments that guarantee adequate ergonomic or postural conditions
Provide training at least annually to employees under the telework modality on the safety and health conditions they must have and maintain in their workplace
Provide mechanisms for responding to cases of family violence that permit, among other things, a temporary or permanent return to the on-site modality

Obligations of Employees under the Teleworking Modality

Enable the Safety and Health Commission to conduct a physical determination of occupational health and safety conditions in the workplace or independently verify the checklist on safety and health conditions in the workplace both before working under the telework modality and periodically thereafter
Inform the employer (in writing and in advance) of any permanent or temporary change of address from the previously agreed upon place of work
Notify the employer and the Health and Safety Commission of any work-related risks encountered

Safety and Health Conditions at Work

To avoid occupational hazards caused by physical agents, employees must have a work area that is:
a) clean and tidy, without unnecessary materials, objects, or equipment in the workplace

b) illuminated in a way that does not cause glare or visual fatigue

c) adequately ventilated and temperature controlled to provide a pleasant environment for the type of activities performed in the working day

d) free of noise levels that prevent the concentration required to perform work (with the exception of environmental noise under the control of third parties)
To avoid work risks caused by ergonomic factors, employees under the teleworking modality must have a workplace that allows them be comfortable in carrying out their activities without accumulating back, neck, or shoulder tension due to the furniture or prolonged sedentary positions; at minimum, that workplace must have:
a) a desk, table, or work surface

b) an appropriate chair for the undertaken activities

c)when appropriate, ergonomic or postural attachments that support the use of computer equipment
To avoid occupational hazards caused by psychosocial factors:
a) employees under the teleworking modality must have a physical space that, preferably, allows privacy when they are working

b) gender conditions must be recognized to enable the reconciliation of work and family and personal life, including the possibility of flexible working hours to facilitate attention to family responsibilities

c) employers must respect the right of employees under the teleworking modality to disconnect at the end of the working day, during agreed-upon breaks in flexible hours, in nonworking hours, and while on vacations and permitted leaves of absence

Conformity Assessment Bodies

Conformity assessment bodies are defined as bodies responsible for inspecting safety and health conditions. They will not visit workplaces under the telework modality.

In this regard, the NOM provides that the employer will have the option of hiring the services of an approved, accredited inspection unit to evaluate compliance with the NOM under the terms of the Quality Infrastructure Law and its regulations.

The approved, accredited inspection units that evaluate compliance with the NOM must issue an opinion that the work center complies with the provisions of the NOM.

The opinion report issued by the inspection unit will remain valid for two years, provided that the conditions under which it was issued are not modified.

The conformity assessment may be carried out through inspection visits conducted by the Labor Authority or by inspection units hired by the employer.

The current inspection opinion report must be available to the Labor Authority upon demand.

The aspects to be verified during the conformity assessment will be verified at the employer’s facilities through physical verification, documentary review, records, or interviews in accordance with the provisions of the NOM.

In accordance with the above, it will be necessary for companies to begin by reviewing their employee schemes under the telework modality as well as the implementation of the provisions of the NOM to guarantee compliance by the date of its coming into force. We are at your service to provide the legal advice that is required.

The Labor & Employment practice remains at your service for any questions or comments in this regard.

Labor & Social Security Practice

Elisa Cortés / elisa.cortes@ecrubio.com

Perla Arreola / perla.arreola@ecrubio.com

Ana María Becerra / ana.becerra@ecrubio.com

Alma Oviedo / alma.oviedo@ecrubio.com

Antonio Flores / antonio.flores@ecrubio.com

Eduardo Cortés / eduardo.cortes@ecrubio.com

Gustavo Carrillo / gustavo.carrillo@ecrubio.com

Isaac Corral / isaac.corral@ecrubio.com

Iván Arriaga / ivan.arriaga@ecrubio.com

Javier Canseco / javier.canseco@ecrubio.com