Entry into force of the Reform to the Federal Labor Law regarding “remote work” or “home office”.

Today come into effect the Decree to amend article 311 and add Chapter XII BIS of the Federal Labor Law (“LFT”), on remote work, after being published yesterday in the Federal Official Gazette (“DOF”).

Below please find the relevant modifications regarding “remote work” or “home office”.

a) Definition of Remote Work. It is defined as the subordinate labor organization form consisting of performing remunerated activities, in places other than the employer’s establishment(s), using primarily information and communication technologies, for contact and command between the worker and the employer, thereby making unnecessary the physical presence of the worker at the workplace.

 Labor relations developed 40% or more of the time in the worker’s home or at the location chosen by them, shall be considered as remote working. Therefore, occasional or sporadic remote activities shall not be considered as remote work.

b) Employers’ obligations. The employers shall have, among others, the following obligations:

• Assume the costs derived from the work through the remote work modality, including, in its case, the payment of telecommunication services and the proportional part of electricity;
• Keep a record of the inputs delivered to the workers, in compliance with the provisions on occupational safety and health established by the Ministry of Labor and Social Welfare (“STPS“);
• Implement mechanisms that preserve the security of the information used by the workers. For example: by conducting security tests and detecting vulnerabilities of the company’s technological infrastructure, the implementation of security standards for equipment and systems, as well as BYOD (“Bring Your Own Device”) policies, training and information security awareness for workers, among others.
• Respect the right of workers to be disconnected at the end of the working day;
• Register workers in the remote work scheme under the mandatory social security regime;

 c) Obligations of the Workers. The workers shall have, among others, the following obligations:

• Take the greatest care in the storage and conservation of the equipment, materials and tools that they receive from the employer;
• Provide timely information on the agreed costs for the use of telecommunications services and electricity consumption, derived from remote work;
• Follow the security mechanisms set forth by the employer, as well as the restrictions on their use and storage, during the performance of their activities.

d) Guarantee of the worker’s privacy right. Mechanisms, operating systems, and any technology used to supervise remote work must be proportional to its objective, guaranteeing the privacy right of workers under the scheme of remote work, and respecting the applicable legal framework regarding personal data protection; including compliance with the obligation to make workers aware of the treatment to which their personal data will be subjected by making a privacy notice available and obtaining their consent for such purposes.

Only in extraordinary circumstances, or when the nature of the functions so requires, video cameras and microphones shall be used to supervise remote work.

e) Health and safety conditions of workers. The special health and safety conditions for jobs under the remote work scheme will be established by the STPS in a Mexican Official Standard, which should consider ergonomic, psychosocial factors, and other risks that could cause adverse effects on life, physical integrity or health of the workers who work in the remote work modality.

For the purposes of the above, the STPS will have a period of 18 months from the entry into force of this Bill, to publish a Mexican Official Standard that governs the obligations in terms of safety and health at work for remote work.

It should be highlighted that in our note of December 14, 2020, we referred to the aspects of the text of this Reform in detail, and it may be consulted here. Also, the full text of the aforementioned Decree may be consulted in the website of the DOF.

We will be following up on the publication of the Official Mexican Standard, keeping you informed on the matter.

Considering the above, it is necessary for employers to adapt and adjust their work organization schemes under the remote work modality. In this regard, employers shall make modifications in individual and collective labor matters, so that individual employment agreements and collective bargaining agreements, internal labor regulations, protocols and any other internal policies set forth by the companies, incorporate the provisions contained in this Reform.