January 11, 2021
Earlier today, an amendment to the Federal Labor Law (herein, Labor Law) was published in the Federal Official Gazette which will be in full force and effect starting tomorrow; such amendment adds a new chapter to the Labor Law with new regulations for home office/telecommuting. The new term teletrabajo consists of the services being provided in locations other than the employer’s workplace.
Key Elements of Telecommuting
- teleworkers are entitled to the same rights as those who provide services in the workplace.
- telecommuting involves the use of information and communications technologies (“ICT”).
- telecommuters must provide more than 40% of their work outside of the workplace.
- telecommuting is voluntary on both sides and can be cancelled under certain conditions.
- the terms and conditions for telecommuting must be in writing.
- Collective bargaining agreements (“CBAs”) should include telecommuting provisions. If employers do not have a CBA in place then, such provisions must be included in their internal labor regulations.
Specific Obligations for Employers
- provide training for the use of ICT.
- assume some expenses and costs derived from telecommuting including payment of telecommunication services (i.e., internet) and a pro-rata portion of the electric bill.
- guarantee the right to disconnect.
- guarantee the right to privacy and personal data protection including limiting the circumstances under which video cameras and microphones must be used.
- The Labor Inspection Authority has full authority to verify compliance with these new obligations.
Specific Obligations for Employees
- keep employers informed of the costs associated with telecommunication services and electricity.
- use and abide by the employers’ mechanisms and systems to supervise their activities.
The Ministry of Labor and Social Welfare has 18 months to issue an Official Mexican Standard related to health and safety conditions for telecommuting and to further clarify other terms and conditions.
It is unclear at this point if Congress or the Labor Authorities will issue guidelines on how to determine when more than 40% of the services are provided outside of the workplace, what exactly is meant by the “right to disconnect” and clarification on the expenses and costs that employers must cover regarding telecommunication services and electric bill. But in the meantime, we recommend that employers revise their current regulations, policies and employment agreements to adopt the telecommuting provisions described herein.
Juan Tejedo, juan.tejedo@gmt.mx
Alfonso García-Mingo, a.garciamingo@gmt.mx
Carlos Acle, carlos.acle@gmt.mx
Regina de la Fuente, regina.delafuente@gmt.mx
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