Mexico’s pending telework health and safety regulations: what employers need to know – Health & Safety

On January 11, 2021, the federal government published a regulation in the Federal Official Gazette, amending the Federal Labor Act (FLL) to regulate working conditions, employer and employee obligations, and health and safety measures related to telework. Telework is regulated by a special chapter of the FLL and the term telework applies whenever more than 40 percent of the work is performed at the employee’s home or at a place of residence chosen and agreed by the employee.

In accordance with the decree, on July 15, 2022 (Secretaria del Trabajo y Prevision Social or STPS) published the project of the official Mexican standard (Normas Officiales Mexicanas or NOM), NOM-037, which sets out the health and safety obligations for teleworkers and employers as follows:

Employer Obligations

1. Maintain and update a list of all teleworkers that include the requirements of the teleworking standard.




2. Ensure that the teleworker’s remote work station has high-speed internet access and meets occupational health and safety requirements, e.g. B. in relation to electrical installations, lighting, ventilation and ergonomic conditions.

Employers can meet these obligations by visiting the workplace or, alternatively, implementing a screening checklist to ensure the remote workplace meets relevant health and safety requirements. If an employer fails to meet any of these obligations, the telework agreement is not legal.

3. Set up a teleworking policy that includes details such as:
   • The preventive measures taken by the employer in relation to safety and health issues;

   
   

   • The mechanisms put in place by the employer to prevent teleworkers from experiencing social isolation;

   
   

   • Contact rules and procedures and a description of how teleworking will be supervised;

   
   

   • Work shift distribution, including the employee’s right to take time off work at the end of a work shift.

4. Identify and document the differences between remote and remote work, as well as process changes and requirements.




5. Provide telecommuters with ergonomic chairs and other equipment and accessories that support worker performance.

Teleworker Obligations

1. Facilitation of the conditions for an employer to visit the home where telework is being carried out to verify compliance with all relevant health and safety requirements. Alternatively, teleworkers can apply the verification checklist mentioned under Employer Responsibilities in person.




2. Observe the employer’s teleworking policy.




3. Any change of address or place of work must be communicated to the employer in writing.




4. Inform the employer of all workplace hazards (both inside and outside the workplace).




5. Observe the employer’s regulations on the protection of data and information when performing the work of the employee as well as the regulations on occupational health and safety.

In addition, the NOM-037 project is preparing and describing a “conformity assessment procedure” guide applicable to the inspection visits carried out by the STPS and the services provided by the inspection units, with which an employer can contract. This is important because the NOM-037 will guide employers in compliance, serve as evidence of compliance with teleworking rules, and help employers avoid future fines that the STPS may impose if an inspection visit reveals non-compliance.

Initially, teleworking seemed to offer more flexibility for both employers and employees. With NOM-037, workers are now being burdened with additional complicated obligations, which may make employers think twice about whether it would be in their best interest to implement a teleworking modality.

According to Mexican law, the published version of the NOM-037 must remain published for a period of 60 calendar days. Comments or clarifications may be addressed to the National Advisory Committee on Standardization of Occupational Health and Safety Conditions.

Ogletree Deakins’ Mexico City office will continue to monitor and report on developments related to NOM-037 and will post updates to the Company’s Cross-Border Blog as additional information becomes available.

The content of this article is intended to provide a general guide to the topic. In relation to your specific circumstances, you should seek advice from a specialist.