The Right to Disconnect Under Mexican Telework Regulations – What Does It Mean for Employers? – Workers’ Rights/ Industrial Relations
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On January 12, 2021, the right to disconnect (known in other countries as the “right to digital disconnect”) in Mexico became an employment right for workers in telecommuting arrangements with the publication of an amendment to the Federal Labor Code (FLL). in which Federal Official Gazette (Diario Official de la Federacion) the day before.
The main purpose of this amendment to the FLL was to reform existing Mexican telework regulations. Some of the key provisions of the new law include:
- the difference between working off-site and a teleworking modality;
- the conditions to be included in employment contracts that formalize a telework agreement;
- specific rules that apply when a collective agreement is in place;
- limitations of telework monitoring mechanisms;
- the specific duties and roles of Department of Labor and Social Welfare (STPS) officials in confirming compliance with teleworking requirements; and
- specific obligations of employers towards teleworkers, including respect for workers’ rights to switch off after work.
The right to disconnect is the right of employees under a teleworking agreement to part from work at the end of the working day. This includes the right to disconnect from digital devices or other information and communication technologies outside of business hours or outside of assigned or agreed working hours and during leaves of absence (e.g. maternity, illness, occupational risks or other). , and other applicable situations..
This means that outside of business hours teleworkers have the right not to be contacted and are under no obligation to be available. By law, employers cannot require employees to respond or respond to communications outside of work hours.
The rationale for including the right to separation among the employer’s responsibilities under the new law is that telecommuting limits workers’ maximum work shifts, as well as the right to intimacy and privacy, all of which are considered constitutional rights in Mexico, in the ongoing search for balance between flexible working arrangements and the appropriate use of digital devices.
Because the FLL amendment provides that STPS officers have the power and obligation to verify that employers are complying with teleworking obligations, including the right to separate, employers must have physical evidence of compliance.
In cases where proof of compliance is not provided, the STPS has the power to impose fines ranging from 50 to 5000 Unidad de Medida y Actualización(UMA), the unit officially used by the Mexican authorities to issue penalties. One UMA is equivalent to 96.22 MXN (which is approximately $5). This range varies depending on the intentional or unintentional nature of the act or omission, the seriousness of the non-compliance, the damage caused, the economic capacity of the infringer/employer and whether the infringement was repeated.
Although Mexican telework regulations require employers to respect workers’ rights to separate, the regulations do not define the precise parameters of the law or provide guidance on how employers should comply with this obligation. Still, there are steps employers can take to support the digital disconnection of remote workers. For example, employers might consider formal teleworking or separation rights policies that specify when the workday begins and ends. In addition, employers can give managers the discretion to require additional hours or more time commitments from teleworkers for specific projects or to meet relevant deadlines, but only allow work outside normal hours if an employee consents as a key attribute. Finally, employers may seek to protect workers from any punishment or retaliation for exercising their right to segregation.
Ogletree Deakins’ Mexico City office will continue to monitor and report on developments regarding telecommuting requirements and employee separation rights in Mexico 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.
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