Since 2019, Mexico’s Congress has been working on an amendment to the legal framework applicable to teleworking and remote working. On 8 December 2020, the legislative chamber discussed and approved the draft of an amendment to article 311 of the Federal Labor Law (FLL) and the addition of Chapter XII BIS. These new provisions became mandatory on 12 January 2021 during the labour emergency declared due to the covid-19 pandemic, a time in which most, if not all the companies had established home office programs to prevent contagion.
The integration of “home office” into the FLL in 2012 was incorrect and incomplete, however. Through a technical mistake, teleworking was equated with home working. In the new legislation, the distinction between these concepts is that home office is work carried out at the domicile of the employee, without being under the control and direction of the employer. Teleworking, by contrast, applies under the following conditions:
- that the work is rendered in a different place to the workplace of the employer;
- that it is not required for the employee to be in the employers’ facilities; and
- that technology is used for the administration of the labour relationship and supervision of the performed service.
Before the amendment came into force, we identified at least three relevant forms of work concerning the rendering of services under the home office scheme or remote working. These forms of services are rendered through information technology and have been established in general under the labour rights and obligations of the FLL, in agreements whereby the parties set forth the terms and conditions of the service.
First, for convenience and efficiency, employees have their employer’s authorisation to work, in extraordinary circumstances, one or two days per week remotely, performing their services by technological means, but, because of their roles, they must render their services in the employers’ facilities in normal circumstances.
Second, employees that may render their services remotely or in their employers’ facilities and, due to the nature of their role, have the freedom to determine where they perform their duties.
Finally, employees that render their services in their home, or a place freely chosen by them, and who will be subject to the new legal framework. Pursuant to the new regulations, these workers must meet additional requisites to be considered as teleworkers: (i) their services are not necessary in the employer’s facilities; (ii) they render their services constantly out of the employer’s premises, and fulfil more than 40% of their work away from the office.
As a special work regime, an agreement must be entered into between the employer and the teleworker, in which the obligations, rights, and responsibilities of a labour relationship under such conditions are established, including equality in the treatment to teleworkers and employees. Among others, it shall contain:
- a description of the equipment and work supplies;
- contact and supervision mechanisms between the parties;
- working hours, including connection and disconnection periods;
- the employer’s and teleworker’s compliance with obligations and responsibilities in matters of health, security, and workplace welfare;
- how the modality of teleworking may be revoked according to the existent labour relationship;
- the collective bargaining agreements and internal work regulations, which must include the terms and conditions of teleworking, providing a communication system for employees; and
- employers must provide supplies and equipment, and pay the proportional costs of connectivity and electric energy services. The law expressly refers to computer equipment, ergonomic chairs and printers, among others.
The amendment foresees the creation of a Mexican official standard in health, security, and workplace welfare, for activities outside the workplace using information and communication technologies within the next 18 months.
In the same manner, the amendment establishes that the authorities will integrate a national network of advice regarding, and promotion and development of, teleworking referred to in the draft of the amendment, as well as establishing guidelines related to accidents and illness while teleworking.
In general terms, we anticipate that the amendment will contribute to the security of labour relationships that are performed under these conditions. Companies will be able to guarantee the efficiency and quality of services rendered through remote or teleworking. Under the special obligations and rights, we predict additional conditions in labour agreements between employer and employee to include:
- an obligation to perform the services using a tool, such as a laptop, assigned by the company;
- an obligation to maintain the equipment for the performance of the entrusted activities (hardware as well as software);
- an employee must comply with all the obligations, work, activities, and projects that must be carried out physically in work facilities or other places;
- limits to working hours, availability of schedule, supervision, digital connectivity, and disconnection;
- the company reserves the authority to determine the activities, deadlines, works, projects, and tasks carried out by the employee, indicating the necessary requirements and specifications;
- the mode of remote or home working may be modified, suspended, or cancelled, in certain circumstances when the company considers it necessary, provided that the employee’s rights are not affected;
- protection of personal data and privacy of the employee; and
- the maintenance of the company’s confidential information.
It is important to differentiate the telework regime from the pandemic home office prevention programme. Agreeing to the provision of services from home does not imply that services are unnecessary in the company’s facilities, and does not transform the employees’ status to teleworkers. Once the health emergency has concluded, employees shall once again provide their services in the workplace as they did before the covid-19 pandemic.
Employers need to review the terms and conditions of their labour agreements to verify that the cause of modification to the labour relationship was caused by the health emergency, and that the company has full authority to terminate the agreement so employees can return to the workplace.