Mexico's New Home Office Regulations
Mexico has reformed its Federal Labor Law to recognize teleworking, regulating employers' responsibilities to employees who work from home offices as well as remote workers' obligations to their employers. Key aspects of this new home office modality are summarized below.
Remote work is considered such when 40 percent of the employee's work is carried out outside the company's facilities and employees primarily make use of information and communication technologies.
Work that is carried out occasionally or sporadically under this format will not be considered "home office."
The following general working conditions must be established in the labor agreement, including home office modality: 1) the equipment and work supplies, including health and safety obligations; 2) the description and amount that the employer will pay the employee under the home office modality, as regular payment for the services he or she carries out at home; and 3) the contact and supervision mechanisms between the parties, as well as the duration and distribution of schedules, as long as they do not exceed the maximum weekly legal working hours.
This new modality must be regulated in the collective labor agreement and/or the internal rules of work.
Employers' obligations are as follows: 1) deliver computer equipment, ergonomic chairs and printers, if necessary, among other items; 2) assume costs derived from employees' work, such as payment for telecommunication services (internet) and the proportional part of the electricity bills; 3) implement mechanisms that preserve the security of the information and data used; 4) respect employees' right to disconnect to from their computers after work; and 5) establish mechanisms and adequate training with regard to communication and information technologies.
Employees' obligations are as follows: 1) to care, store and conserve supplies provided to them to carry out their tasks; 2) adhere to the work safety and health provisions established by the employer; 3) protect data used in performance of their activities; and 4) promptly inform employers of costs incurred for the use of telecommunications services and electricity as a result of their work.
Employers guarantee the employees' right to privacy and disconnection, notwithstanding any circumstances where video cameras and microphones must be used.
The Ministry of Labor and Social Welfare needs to prepare an official Mexican standard regarding the special health and safety conditions that must be developed under the home office modality.
- Home office is a new work modality, and any company that agrees to adopt this modality must comply with the following:
- Implement an internal policy that establishes eligible positions, terms and conditions that comply with the Federal Labor Law.
- Establish the existence of this modality in its internal labor regulations, and refer to the policy for terms and conditions.
- Include a letter or addendum in employees' labor agreements to document the general conditions and the employee's desire to adhere to this work format and a letter documenting the supplies delivered to the employee.
- Establish this modality in the collective contract, only if it is unionized.
- In relation to employers' obligations, employers must pay for remote work expenses, such as internet and electricity, established in the internal work policy. As the law does not stipulate a way to calculate such expenses, the following steps may want to be considered: The employee should deliver a copy of his or her electricity bills from the past year and any payments made online, indicate under penalty of perjury the number of people who live in their address and perform a calculation per person. Once this amount has been determined, it should be established in the labor agreement addendum or in the supply letter delivered to the employee.
- It is important to mention that many consider employees who are currently working from home, as recommended by the federal government by virtue of the COVID-19 pandemic, must comply with Work Environment Health Safety Technical guidelines (Lineamientos Técnicos de Seguridad Sanitaria en el Entorno laboral). Employers should prepare and train employees so that they may assume these guidelines and perform different functions, in the event of possible absenteeism, including the use of home office technologies and access to the toolkit, guides and any practical advice to make the most of this home office modality. Employers may want to consider preemptively documenting and keeping receipts of the supplies that were delivered to employees at the beginning of the pandemic.
Therefore, employees who are working from home during the pandemic, as a form of social distancing and as recommended by the government to avoid the spread of COVID-19, are not necessarily considered under a new home office modality with regard to the new provisions established by the Mexican Government.
In this sense, any company must comply with new home office obligations if they implement this modality as a form of work, regardless of whether or not there is a health emergency.
Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.