NEW TELEWORKING PROVISIONS.

Mexico City, June 13, 2023.

On June 8, 2023, the long-awaited Mexican Official Norm was published in the Official Gazette of the Federation. NOM-037-STPS-2023. Telework - Safety and health conditions in teleworking.after an analysis of the labor and business sectors to the project that was originally published on July 15, 2022. The creation of this Mexican Official Standard is the result of compliance with the reform that added Chapter XII Bis of the Federal Labor Law, on Telework, in the month of January 2021, where it granted the Federal Executive Power a period of eighteen (18) months to publish a standard that reflects the provisions, obligations and guidelines on safety and health in the provision of services under the modality of telework.

The Standard contemplates the following points:

General Considerations.

It distinguishes between the work center, where the activities are developed in a face-to-face manner, and the workplace, which is one different from the work center, where the teleworker develops his/her activities. 

Employer's obligations.

1. To have an updated list of workers under the modality of teleworking, reflecting name, gender, marital status, name and profile of the job, activities to develop, time (in percentage) under the modality of teleworking, contact telephone number, address, the place or places agreed for the provision of remote services, reason and address of the work center and a list of computer and ergonomic equipment given to the worker.
2. Ensure that the workplaces in which the services are developed under the teleworking modality comply with specific conditions, such as having connectivity, comply with safety and health conditions at work (good condition of electrical installations, lighting, ventilation and ergonomic conditions), and the employer may perform a physical or virtual verification of the place referred to, through its Safety and Hygiene Commission.
3. Establish and implement a Teleworking Policy with a gender perspective, which contemplates the time off for women workers in breastfeeding period.
4. To have the validation of the "Checklist of the conditions of safety and health in Telework", either through a visit or through a questionnaire that is given to the worker to determine whether or not it has the necessary conditions for the development of telecommuting. These visits may be carried out by the Health and Safety Commission, with the consent of the worker.
5. Establish in writing the procedure to migrate from the face-to-face modality to teleworking.
6. Provide ergonomic chairs and other supplies and accessories necessary for the performance of their work.
7. Create and document programs regarding how to provide maintenance to electronic equipment issued to teleworkers.
8. Provide training to teleworkers on safety and health conditions to be maintained at their remote workplace, at least once a year.
9. Guarantee the reversibility to the face-to-face scheme, when justified, or because it is in their best interest.
10. Perform the corresponding medical examinations of workers in accordance with NOM-030-STPS-2009 (Preventive occupational health and safety services - Functions and activities), and follow up on occupational accident reports.
11. To have mechanisms in place to deal with cases of domestic violence, including a return to the face-to-face modality.
12. To guarantee the confidentiality of the lists of the people who are under the modality of teleworking.
13. To provide support and facilities for workers under the teleworking modality to participate in the Health and Safety Commission or in the Joint Commission of Training, Training and Productivity.
14. Include union rights and applicable collective bargaining agreement provisions in the Telework Policy.

Obligations of the workers under the modality of teleworking.

1. Provide the Health and Safety Commission with the necessary facilities to check the safety and health conditions in their workplace, for the first time, and thereafter at the established intervals.
2. Comply with the Telework Policy.
3. Inform the employer of any alteration that, in terms of occupational safety and health, prevents the development of its activities in the place agreed by the parties. The basic elements of the letter of temporary change of place of work are: date of preparation, name of the worker, and description of the change of address.
4. To safeguard and keep in good condition the electronic equipment, materials, tools and ergonomic material provided by the employer.
5. Comply with occupational health and safety regulations and undergo medical examinations in accordance with NOM-030-STPS-2009 (Occupational Health and Safety Preventive Services - Functions and Activities).
6. Comply with the policies and mechanisms for data and information protection, use and storage restrictions established by the employer.
7. Inform the employer in writing of any temporary or permanent change of address from where he/she performs his/her remote activities.
8. To participate in the processes of information and training on the risks related to Telework.
9. Notify the employer and the Health and Safety Commission of any occupational hazards suffered.

Occupational Safety and Health Conditions / Training and Education.

The Standard establishes the occupational health and safety conditions that must be met by the parties to avoid occupational hazards caused by physical agents, ergonomic risk and psychosocial risk factors, as well as the terms and conditions under which training must be provided to workers under the teleworking modality.

Verification of Health and Safety Conditions.

Employers may hire evaluation agencies in charge of inspecting safety and health conditions -without them visiting the workplaces-, called "Inspection Units", which must be accredited and approved for such purpose. For such purpose, a "Procedure for the Evaluation of Conformity" is established, which will be applicable both for the aforementioned Inspection Units, as well as for the inspection visits made by the labor authority in the workplaces.

The Standard also establishes the type of verification (documentary and/or interview) and the acceptance criteria with which the employer may prove, through the Safety and Hygiene Commission, the due compliance with its obligations regarding safety and health in teleworking and contains several reference guides that the employer may take as a basis for the observance of the corresponding provisions.

In this last version of the Standard, the Safety and Hygiene Commission was given a preponderant role, with the purpose of being in charge of verifying the conditions in which the workers will work under the teleworking modality, which can be verified through photographs or videos.

Another important aspect of the Standard is that it highlights the gender perspective as an element in the implementation of the telework modality, establishing special protections for people who may suffer domestic violence and recognizing the rights of breastfeeding women to take breaks.

Based on the above, the purpose of this standard is to promote the importance of work-family balance, to avoid social isolation and technostress (negative psychosocial effects derived from the use of information technologies), as well as the role of employers in preventing risks that could negatively affect the health and life of their workers.

The Standard will enter into force one hundred and eighty (180) calendar days after its publication in the Official Gazette of the Federation, that is, in December of this year 2023.

This press release was prepared with the assistance of Jimena Olivera Palazuelos and Gabriela Guadarrama García.

The attorneys of Basham, Ringe y Correa, S.C. are at your disposal in case you have any questions or comments.

Sincerely yours,

Jorge De Presno

jorgedepresno@basham.com.mx

David Puente

dpuente@basham.com.mx

Luis Alvarez

lalvarez@basham.com.mx