Am I obligated to contemplate my employees under the work modality of “teleworking” because of the sanitary measures established as a result of the SARS-COV2, COVID 19 pandemic?
No, due to the pandemic that is affecting Mexico and the world, various national health organizations have established different measures to flatten the curve of infections in their respective countries. Mexico, through their Health Council, has established a traffic light mechanism. As long as federal entities are classified as red and orange traffic lights, they must respect the corresponding social gathering capacities and measures, without this being linked to the new legal figure of teleworking, published in the Official Journal of the Federation (DOF) on January 11th, 2021.
So, what is Teleworking?
Teleworking is a reform that modifies section 311 of the Federal Labor Law which creates new provisions, thus generating a new modality of work. Teleworking is a personal, paid and subordinate service, which is performed more than 40% of the time in a place other than the installation of the employer’s company or work center, using information and communication technologies.
It will not be considered “teleworking” when the job is carried out on an occasional or sporadic basis at the worker’s home.
The change in the modality from on-site working to teleworking must be voluntary, without this decision affecting the employment relationship. In any case, when an employee switches their work modality to teleworking, the parties will have the right to reverse the work modality back to on-site working, for which they must agree on the mechanisms, processes and times necessary to make these changes valid.
What are my obligations as an employer under the new teleworking modality?
- To ensure that the working conditions of the employee under this modality are in writing by means of a contract or addendum.
- To integrate the teleworking modality into the Collective Bargaining Agreement – in case the company has a trade union.
- To have an Internal Labor Regulation and establish the guidelines for teleworking.
- To keep a record of costs arising from teleworking, for example: the payment of telecommunications services and the proportional part of the electricity bills.
- To implement mechanisms that preserve the security of company information and data.
- To enroll the worker in the mandatory social security regime in the teleworking modality, and
- To guarantee the right to privacy in compliance with the applicable legal framework for the protection of personal data.
What are the obligations of teleworking employees?
- To take care, store and protect the equipment, materials and tools they receive;
- To report on the agreed costs for the use of telecommunications services and electricity consumption, derived from teleworking;
- To behave in accordance with the provisions established by the company in the field of occupational safety and health;
- To use and fulfill the mechanisms and operating systems established for monitoring their activities.
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