FOREIGN TRADE NEWSLETTER

Background: On December 9, it was approved by the Congress of the union the opinion with the draft decree by which article 311 is reformed and chapter XII BIS of the Federal Labor Law on Teleworking is added.

On January 11, 2021, the new guidelines were published in the Official Gazette of the Federation (DOF) that establish the rights and obligations of employers and workers who apply the modality of remote work and the rules applicable to it.

DEFINITION OF TELEWORKING:

Form of subordinate labor organization that consists of the performance of paid activities, in places other than the establishment of the pattern,, without requiring the physical presence of the worker in the workplace.

It will be considered as telework when more than 40% of the activities are carried out at the employee’s home or the place of his or her choice.

In order to carry out the teleworking modality, the use of information technologies is necessary, for effective communication, and for the supervision of the employer.

Employers’ obligations

Article 330-E establishes that employers must:

• Provide, install and take care of the maintenance of the necessary equipment for teleworking such as computer equipment, ergonomic chairs, printers, among others;
• Pay wages in the form and on the stipulated date.
• Assume the costs derived from working under the teleworking modality, including, where appropriate, the payment of telecommunication services and the proportional part of electricity;
• Keep a record of the supplies delivered to workers under this modality;
• Implement mechanisms that preserve the security of information and data used by teleworkers;
• Respect the right to disconnection at the end of the working day;
• Register workers in the teleworking modality to the mandatory social security regime, and
• Establish the necessary training and advisory mechanisms to guarantee the adaptation, learning and adequate use of information technologies by teleworkers.

Worker’s obligations

• Save and conserve the equipment and materials that they receive from the employer.
• Report on the agreed costs for the use of telecommunications services and electricity consumption, derived from teleworking;
• Obey the occupational health and safety provisions established by the employer;
• Attend and use the mechanisms and operating systems to supervise their activities,
• Attend the data protection policies and mechanisms used in the performance of their activities.

Likewise, the new law establishes that the teleworking modality must be recorded in writing by means of a contract. And that this modality will form part of the collective bargaining agreement, which may exist between unions and companies and a copy must be delivered to each worker under this modality.

In the event that employers do not have a collective bargaining agreement, they must include telework in their internal work regulations, and establish the mechanisms that guarantee the link and contact between people who perform work under the telework modality.

For its part, the Ministry of Labor and Social Welfare must issue the Official Standard (NOM), in the next 18 months, in order to regulate the implementation of safety and health in the workplace.

Once the aforementioned regulation is issued, labor inspectors will be able to verify that employers keep a record of the inputs delivered to teleworkers; as well as ensuring that teleworkers’ wages are not lower than those paid to face-to-face workers who perform the same or similar functions; among the other obligations.