Dear Clients and Friends,
On December 9th, 2020, the Senate approved the Decree that reforms Article 311 and adds Chapter XII BIS of the Federal Labor Law (LFT), regarding remote working (known as “home office”), which was previously approved by the Chamber of Deputies. The Decree is currently pending publication in the Official Gazette of the Federation (DOF) and, consequently, its entry into force.
The Decree establishes that remote working is a form of subordinate labor organization that consists on the performance of paid activities in places other than the employer’s establishment or establishments, and therefore the physical presence of the worker in the workplace is not required, using primarily information and communication technologies for contact and command between the worker and the employer.
Among the essential aspects of the LFT Reform are the following:
1. Requirements.
To be considered as remote working, more than 40% of the time must be spent at the worker’s home or at the place chosen by the worker.
It will not be considered as remote working that which is carried out in an occasional or sporadic manner.
It is established that the Labor Agreement for employees under the remote work modality, in addition to the requirements established in Article 25 of the LFT, must include:
a) The work equipment and supplies, including those related to safety and health obligations given to the employee;
b) The description and amount of money that the employer will give the worker for payment of services at home related to remote working;
c) The mechanisms of contact and supervision between the parties, as well as the duration and distribution of schedules, provided that they do not exceed the legal maximums.
The remote working modality will be part of the Collective Labor Agreement (CCT) and a copy of these Agreements must be given without cost to each of the workers who perform their work under this modality.
Employers that do not have a CCT must include remote working in their Internal Work Regulations (RIT).
2. Obligations for the employer and workers in remote working modality.
The following are established as obligations of the employers:
a) Provide, install and maintain the necessary equipment for remote working such as computer equipment, ergonomic chairs, printers, among others;
b) Assume the costs derived from work in the modality of remote working, including if applicable, the payment of telecommunication services and the proportional part of electricity;
c) To keep a record of the inputs delivered to the employees under the remote work modality, in compliance with the provisions on safety and health at work established by the Ministry of Labor and Social Welfare (STPS);
d) Implement mechanisms that preserve the security of the information and data used by the employees in the remote working modality
e) Respect the right to the disconnection of the workers in the remote working modality at the end of the working day;
f) Register the employees in the modality of remote working to the obligatory regime of social security.
g) Establish the necessary training and counseling mechanisms to guarantee the adaptation, learning and adequate use of the information technologies of the workers in the remote working modality, with special emphasis on those who change from the face-to-face to the remote working modality.
The workers will have the following obligations:
a) To take good care for the custody and conservation of the equipment, materials and tools they receive from the employer;
b) Inform in a timely manner about the agreed costs for the use of telecommunication services and electricity consumption, derived from remote working;
c) Obey and comply with the provisions on safety and health at work established by the employer;
d) Attend to and use the mechanisms and operating systems for the supervision of their activities;
e) Comply with the policies and mechanisms of data protection used in the performance of their activities, as well as the restrictions on their use and storage.
3. Other relevant provisions.
The Decree provides that the change from face-to-face to remote working must be voluntary and established in writing, except in cases of force majeure.
Likewise, the parties will have the right to reverse the modality of remote working to the face-to-face modality, for which they may agree on the mechanisms, processes and times necessary to make valid their will to return to such modality.
The law amendment establishes that the right to privacy of the employees under the remote working modality must be guaranteed, so the mechanisms, operating systems and any technology used to supervise the remote working must be proportional to its purpose.
Video cameras and microphones may only be used to monitor remote working in an extraordinary manner, or when the nature of the functions performed by workers under the remote working modality requires it.
The special safety and health conditions for the work performed under the remote working modality will be established by the STPS through an Official Mexican Standard (NOM), which must consider the ergonomic and psychosocial factors and other risks that could cause adverse effects on the life, physical integrity or health of the workers performing under the remote working modality.
4. Labor Inspectors.
The following are established as new attributions and special duties of the Labor Inspectors:
a) To verify that the employers keep a record of the inputs delivered to the workers in the modality of remote working, in compliance with the obligations of safety and health at work;
b) Ensure that salaries are not lower than those paid in the company to the employee working in site with the same or similar functions;
c) To verify due compliance with the special obligations established for remote working.
5. Validity and deadlines.
The above-mentioned Decree shall enter into force on the day following its publication in the Official Gazette of the Federation.
A term of 18 months is established as from the date of entry into force of the abovementioned Decree, for the Federal Government to publish the NOM governing the obligations in matters of safety and health at work for remote working.
In accordance with the above, it will be necessary for the companies to modify the Labor Contracts, CCT, RIT, Policies and other documents in order to guarantee the compliance with the aforementioned Reform, so we are at your disposal to make the corresponding changes.
For the time being, we remain at your disposal for any questions or comments.
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