Alerts and Updates
The consent of both parties is needed to establish a telework relationship except in cases of force majeure in which such a change of modality is necessary.
The COVID-19 pandemic changed many aspects of our daily lives. In many countries, the pandemic forced a vast majority to refrain from going to their respective workplaces and work remotely from their homes instead. This situation has changed some of the rights and obligations of employers and employees around the world. Mexico is no exception.
On January 12, 2020, a reform to the Mexican Federal Labor Law took effect, incorporating new provisions on telework into the law.
Below is our summary of some of the most relevant matters with respect to the reform. It is important to consider that the creation of additional guidelines will be issued within the following 18 months. These guidelines will provide for special rules on health and safety for teleworkers.
Pursuant to the reform, a telework relationship comprises a new form of labor organization. Under the reform, telework takes place when:
- An employee carries out paid activities in a personal and subordinate manner for an employer in a place other than the workplace;
- The physical presence of the employee at the workplace is not required;
- Work is performed by means of information and communication technologies; and
- The activities carried out in a different place than the workplace comprise more than 40 percent of the time of the employment relationship.
If these conditions are not met, then a standard labor relationship between the employer and employee would exist pursuant to the Mexican Federal Labor Law. Consequently, sporadic or occasional work performed in a different place than the workplace may not be considered as telework.
Furthermore, telework may take place as a new labor relationship for new employees, or it may be agreed upon with existing employees by modifying the terms and conditions of their existing labor relationship.
In any case, the consent of both parties is needed to establish a telework relationship except in cases of force majeure in which such a change of modality is necessary. Moreover, both parties are entitled to revert to a standard labor relationship and further entitled to agree the necessary mechanisms, procedures and timing in order to revert to a standard labor relationship.
Importantly, a telework relationship needs to be agreed to in writing by the employer and the employee in the corresponding individual employment agreement and collective bargaining agreement, or in the internal labor guidelines in case no collective bargaining agreement is in place, and further meet certain requirements.
Terms and Conditions
Notwithstanding the obligations, terms and conditions that are common to all labor relationships pursuant to the Mexican Federal Labor Law, these are some of the most relevant terms and conditions applicable to telework as provided under the new reform:
- The employer is required to provide, install and maintain the necessary equipment for the employee, such as computers, printers and ergonomic chairs, among others.
- The employer is required to promptly receive the work done by the employee and pay the salary as agreed.
- The employer is required to pay the proportional cost for telecommunications and electric services.
- The employer is required to provide and implement mechanisms to preserve the security of the information and data handled by the employee.
- The employer must respect the right of the employee to be offline once the workday is over.
- The employee is required to comply with the provisions set forth in the employment agreement, such as working hours and supervision by the employer, among others.
Due to the COVID-19 pandemic, many employees in Mexico are still working remotely. Even though the pandemic may be considered as a force majeure event in certain cases, this does not imply that such labor relationships may be automatically considered as telework relationships.
As previously mentioned, telework takes place when certain specific conditions concur, and the remote work currently being performed by many employees at their home is a temporary measure which may not entail the existence of telework.
Consequently, it is important to analyze each individual case in order to determine whether a telework relationship exists. Thus, parties may wish to consider seeking assistance from experienced labor practitioners in order to determine whether they are in compliance with the new reform.