Amendment to the Labor Law regarding Teleworking.
On December 9, 2020, the Mexican Senate approved an initiative that amends various articles of the Federal Labor Law in order to introduce “home-office”, including Article 311, and adds Chapter XII BIS to the Federal Labor Law to introduce “teleworking”.
It is important to note that, in principle, such amendments do not necessarily apply to the employees that are currently doing “home office” due to the sanitary emergency caused by COVID-19. Thus, it is necessary to analyze the amendment on a case-by-case basis.
The amendment states that:
- “Teleworking” is the performance of labor activities in places other than the employer’s facilities using information and communication technologies.
- Occasional or sporadic teleworking is not considered “teleworking”.
- “Teleworking” will only be considered as such, when the activities performed by the employee in his/her address (or in places other than the employer’s establishment), represents more than 40% of his/her time.
- An employee may change to “teleworking” provided that such change is agreed by both parties in writing (except when force majeure is accredited).
- Any employee that changes to “teleworking” will have the right to return to an in-person modality, in accordance with the terms that the parties agree upon.
- The “Teleworking” agreement will need to be in writing and include, among others, the type of work, the equipment, and supplies to be provided to the employee, salary, mechanisms for communication and supervision, and the limits of the work-shift.
It is important to note that the amendment does not establish the procedure, as well as how the proportion of the costs of the internet and electric services that will be reimbursed to the employee will be calculated.
The above-mentioned initiative has been approved by the Chamber of Deputies; therefore, it has been sent to the President for his approval and publication in the Federal Official Gazette (“DOF”) in order that it comes into effect the next day of such publication.
Key points for companies:
- Carefully analyze the current labor relationships of the company, taking into consideration the pandemic, and determine if such labor relationships should be regulated under “Teleworking”, or if the regular general working conditions should continue to apply.
- Analyze the tax impact and the mechanism for the payment of the costs and supplies regarding the provision of the services.
- The rules of “teleworking” must be included in the Collective Bargaining Agreements and the Internal Shop Rules.
- Development of policies for supervision and training, for the security of information security and management and protection of personal data and employee privacy.
- Expect the issuance of the publication of the Mexican Official Norm (“Norma Oficial Mexicana”). Within the 18 months following the entry into force of the reform, such Norm will provide the special conditions of safety and health at work that includes the special risks in the modality of teleworking (such as ergonomic, psychosocial, and other factors that could cause adverse effects to the life, physical integrity or health of the employees).
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