On Jan. 11, a decree was published in Mexico’s Official Gazette of the Federation that amended Mexico’s Federal Labor Law on the subject of remote work by adding a chapter that took effect Jan. 12.
The decree regulates the practice of remote work, which it refers to as telework, and defines it as the performance of paid activities at locations different than the establishment(s) of the employer, not requiring the physical presence of the worker at such establishment(s). Under this form of work, the contact between the worker and the employer takes place through information and communication technologies—i.e., through services, infrastructure, networks, software, information applications and equipment. The form of telework is to be part of collective bargaining agreements and, if there no such agreement, the internal labor regulation.
For purposes of the decree, telework entails work that occupies more than 40 percent of the worker’s time at the worker’s domicile (or place elected as the domicile), but will not cover work that is occasional or sporadic.
Telework must be formalized through a written contract that, among other items, must include a description of (i) the nature and characteristics of the work, (ii) the equipment and consumables of the work, (iii) the mechanism for contact and supervision between the parties and (iv) the duration and distribution of the work schedules.
Employers will have certain special obligations related to telework, the following being some of the principal ones: (i) to supply, install and maintain the necessary equipment for telework, such as computers, ergonomic chairs and printers; (ii) to assume the costs related to telework, including paying for telecommunication and electricity services; (iii) to respect the workers’ right to disconnect on completion of the workday; and, (iv) to register workers engaged in telework to the obligatory social security regime, among others. One of the principal obligations of employees engaged in telework is that they comply with and use the employer’s operating mechanisms and systems for the supervision of the workers’ activities.
The change to telework must be voluntary, except in cases of force majeure. Both parties are to have the right to revert to in-person work.
The employer must at all times promote equilibrium between the labor relationship of workers engaged in telework and those engaged in in-person work, balancing the worker’s personal life with the availability to perform telework during the workday. In addition, employers must guarantee the right of privacy of workers and must respect applicable law on the protection of personal data.
Special conditions for health and safety respecting telework are to be established by the secretary of labor and social security (secretaría del trabajo y previsión social) in a Mexican Official Norm (Norma Oficial Mexicana) to be published within 18 months of the decree’s effective date.
The tax implications for both the employer and the worker will have to be analyzed, including the deductibility of the costs for electricity and telecommunication services that the decree obligates the employer to incur, given that these services would be invoiced in the name of a third party other than the employer, and the possibility that these costs might be considered income to the worker.
Alejandro González, Joel González Lopez and William “Hunt” Buckley are attorneys with Haynes and Boone in Mexico City. © 2021 Haynes and Boone. All rights reserved. Reposted with permission of Lexology.