On June 8, Mexico’s Ministry of Labor and Social Welfare introduced a new standard outlining the obligations and requirements for teleworking employees across the nation. (See Official Mexican Standard NOM-037-STPS-2022 (“NOM-037”)). It will take effect 180 calendar days after its publication.
NOM-037 addresses the health and safety conditions associated with teleworking, requiring employers to: 1) establish a written policy providing particular information to teleworkers; 2) conduct annual training; 3) implement compliance verification procedures and establish appropriate reporting mechanisms for dealing with domestic violence; and 4) provide the tools necessary for the teleworker to complete their job duties.
In Mexico, an employee is considered to be teleworking when the work is performed remotely for more than 40 percent of the shift.
What It Means to You
The new standard introduces new obligations for employers. Here are further details:
- Employers must maintain a list of teleworking employees, including their name, gender, marital status, workplace, percentage of time they will telework, as well as a list of computer and ergonomic equipment provided to each teleworker.
- Employers must establish and disseminate a written telework policy that, among other things: promotes the culture of prevention of occupational risks, facilitates communication to avoid social isolation, guarantees the right to privacy and disconnection, establishes the duration of work hours and allows breastfeeding mothers time to feed their children.
- Employers must ensure that the teleworking location complies with certain requirements, such as providing reliable connectivity for communicating, suitable health and safety conditions (including adequate lighting, ventilation, privacy and noise levels that do not interfere with concentration), and appropriate ergonomic conditions.
Actions to Take
To comply with the new obligations, employers should:
- Draft and disseminate a comprehensive telework policy that aligns with the requirements outlined in NOM-037.
- Train teleworkers on the ergonomic and psychosocial risk factors associated with their work.
- Implement a clear process for transitioning employees from in-person work to telecommuting.
- Provide teleworkers with essential ergonomic resources, including ergonomic chairs and necessary supplies.
- Be prepared to shift telework arrangements to in-person work when necessary.
- Conduct annual training sessions on health and safety conditions specifically tailored to teleworkers.
- Arrange medical examinations in accordance with the provisions stated in NOM-030-STPS-2009.
- Promptly report any accidents related to teleworking to the relevant authorities.
- Establish appropriate mechanisms to address cases of domestic abuse that warrant a temporary or permanent return to in-person work or changes in health and safety conditions.
- Integrate the Health and Safety Joint Committee to draft the verification list of the health and safety conditions in teleworking and grant all facilities required to the same for its validation.
- Implement a suitable mechanism to verify the health and safety conditions at the teleworkers’ designated locations. This can be achieved through direct reviews with prior consent from the teleworker or through self-assessment using a checklist, which should be validated by the employer or a designated representative. The employer may also request photographs or videos of the teleworking environment for further validation.
Employers Remain Responsible
It is crucial to emphasize that the self-assessment of conditions by teleworkers does not absolve employers of their responsibility. The validation of such assessments should still be carried out by the employer or an authorized representative.
Employers must provide documentary evidence to prove their compliance with the prescribed obligations. Reporting on risks related to telecommuting activities should also be supported by documentary evidence and, if necessary, through interviews.
Additionally, employers have the option to engage the services of an accredited inspection unit to assess compliance with the standard. Accredited and approved inspection units must issue an opinion regarding compliance with the standard, provided that the teleworking facilities adhere to the stipulations set forth in the standard.
Liliana Hernandez-Salgado and Javiera Medina-Reza are attorneys with Baker McKenzie in Mexico City. © 2023 Baker McKenzie. All rights reserved. Reposted with permission of Lexology.
Content is provided for educational and informational purposes only and is not intended and should not be construed as legal advice. This may qualify as “Attorney Advertising” requiring notice in some jurisdictions. Prior results do not guarantee similar outcomes. For more information, please visit: www.bakermckenzie.com/en/client-resource-disclaimer.