NEW PROVISIONS ON TELEWORKING.

Mexico City, June 13, 2023.

On June 8, 2023, the long awaited Mexican Official Standard NOM-037-STPS-2023. Telework – Safety and health conditions in teleworking was published in the Official Gazette of the Federation, after an analysis of the labor and business sectors to the draft originally published on July 15, 2022. The creation of this Mexican Official Norm (NOM) is the result of compliance with the reform that added Chapter XII Bis of the Federal Labor Law, in matters of Telework, in 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 telework modality.

The NOM includes the following points:

General Considerations.

It distinguishes between the work center, where the activities are conducted in person, and the workplace, which refers to a location other than the work center, where the teleworker develops its activities.

Obligations of the employer.

1.       Keep an up-to-date list of employees engaged in telework modality, including name, gender, marital status, name and profile of the job, activities to develop, time (in percentage) under the telework modality, 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 provided computer and ergonomic equipment.

2.      Ensure that the workplace(s) where the services are developed under the telework modality comply with specific conditions, such as proper connectivity, and comply with safety and health conditions, including good condition of electrical installations, lighting, ventilation and ergonomic conditions. The employer may conduct physical or virtual verification of the workplace, through its Safety and Hygiene Commission.

3.      Set forth and implement a Telework Policy with gender perspective, which considers factors such as rest time for women during breastfeeding period.

4.      Validate the «Checklist of the conditions of safety and health in Teleworking», either through a visit or a questionnaire that is given to the employee to determine whether it has the necessary conditions for the development of teleworking. These visits may be carried out by the Safety and Hygiene Commission, with the consent of the employee.

5.      Set forth in writing the procedure to migrate from a face-to-face modality to the telework modality.

6.      Provide ergonomic chairs and equipment for the performance of their work.

7.      Create documented programs for equipment maintenance delivered to the employees.

8.      Provide training to the employees on conditions of safety and health that they must maintain in their workplace, at least once a year.

9.      Guarantee the option to revert   to the face-to-face scheme, when justified, or because it suits the employee’s best interests.

10.     Perform medical examinations to employees in accordance with NOM-030-STPS-2009 (Preventive services of safety and health at work – Functions and activities) and follow up on occupational risk notices.

11.      Set mechanisms for cases of family violence, including the option to return to the face-to-face modality.

12.     Maintain confidentiality of the lists of the employees who are under the telework modality.

13.     Facilitate employee participation under the telework modality in the Safety and Hygiene Commission or in the Joint Commission of Training and Productivity.

14.     Include union rights and provisions from the applicable collective bargaining agreement in the Telework Policy.

Obligations of employees under the telework modality.

1.       Provide to the Safety and Hygiene Commission the necessary facilities to check the safety and health conditions in their workplace, initially and periodically.

2.      Comply with the Telework Policy.

3.      Inform the employer of any alteration that, in terms of safety and health at work, prevent the development of their activities in the place agreed by the parties. The basic elements of the letter of temporary change of place of work are: date, name of the employee, and description of the change of address.

4.      Safeguard and keep in good condition the electronic equipment, materials, tools and ergonomic material provided by the employer.

5.      Comply with the provisions on occupational safety and health, and undergo medical examinations, as required by NOM-030-STPS-2009 (Preventive occupational safety and health services – Functions and activities).

6.      Abide by the policies and mechanisms for data and information protection, restrictions on use and storage, set forth 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.      Participate in the processes of information and training on the risks related to Telework.

9.      Notify the employer and the Safety and Hygiene Commission of work-related risks.

Occupational Health and Safety Conditions / Training and Education.

The Standard establishes the occupational safety and health conditions that the parties must comply with to prevent occupational risks caused by physical agents, ergonomic and psychosocial factors, as well as the terms and conditions under which training, and education must be provided to employees under the telework modality.

Verification of Safety and Health Conditions.

Employers may engage with inspection agencies in charge of inspecting safety and health conditions -without them visiting the workplaces-, called «Inspection Units», which must be accredited and approved for this purpose. The Standard includes a «Procedure for the Evaluation of Conformity» applicable to both the Inspection Units mentioned above, as well as for the inspection visits carried out by the labor authority in the work center.

The Standard also sets forth the type of verification, such as documentary review or interviews and the acceptance criteria with which the employer may prove, by means of the Safety and Hygiene Commission, the due compliance with its obligations regarding safety and health in teleworking and contains several reference guides that employers may take as a basis for the observance of the corresponding provisions.

In this last version of the Standard, the Safety and Hygiene Commission plays a significant role, in f verifying the conditions in which the employees will work under the telework modality, which can be verified through photographs or videos.

Another important aspect about the NOM is its highlights on gender perspective as an element in the implementation of the telework modality setting special protections for individuals who may suffer domestic violence and recognizing the rights of women in breastfeeding period.

Based on the above, this standard aims to promote work-life-family balance, prevent social isolation and techno-stress (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 lives of their employees.

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 2023.

This note was prepared with the support of Jimena Olivera Palazuelos and Gabriela Guadarrama García.

The labor and employment lawyers of Basham, Ringe y Correa, S.C., remain in case you have any questions or comments.

SINCERELY,

Jorge De Presno

jorgedepresno@basham.com.mx

David Puente

dpuente@basham.com.mx

Luis Álvarez

lalvarez@basham.com.mx