Definition of teleworking (home office)
Work supervised through electronic means or teleworking is a labor arrangement in which the employer supervises the employee, working from a location other than the employer’s physical workplace, through specific mechanisms. The physical presence of the employee is not required within the workplace. Teleworking is characterized by its reliance on IT equipment, and it uses information and communication technologies to facilitate contact and instruction between the employee and the employer. If the employee does not use IT equipment and is not under the employer’s direct supervision, the working arrangement falls under the “home working” category.
For the purposes of teleworking, information and communication technologies are understood as the set of services, infrastructure, networks, software, computer applications and devices that have the purpose of facilitating tasks and functions in the work centers.
More than 40% of the working time must be spent on remote tasks
When more than forty percent of the work is performed from the employee’s home, or at the location chosen by the employee, it is considered teleworking. Telework will not be considered as such when conducted on an occasional or sporadic basis.
Employer obligations with respect to telework, the employer is required to record the working conditions in writing. The document must cover the following topics:
- working equipment and supplies provided
- health and safety obligations
- contact and supervision mechanisms between the parties
- duration and distribution of schedules
- working conditions within collective bargaining agreements, if any; otherwise, they shall be incorporated into the internal workshop rules
In addition, the employer must:
- provide, install and maintain the equipment necessary for teleworking, such as computers, ergonomic chairs and printers, among others
- assume the costs derived from teleworking, including (where appropriate) the payment of telecommunication services and the proportional part of electricity
- honor employee’s rights to disconnect from teleworking at the end of the working day
- establish the necessary training and advisory mechanisms to guarantee the adaptation, learning and appropriate use of information technologies for teleworking employees, with special emphasis on those who shift from normal or traditional working arrangements to teleworking, among other general obligations
Voluntariness and reversibility
The employment change in the modality from traditional or direct work to teleworking must be voluntary.
Further, when there is a change to the teleworking modality, both parties have the right to revert to the direct or traditional modality, for which they must agree on the mechanisms, processes and timing necessary to enforce the return to the former modality.
Work-balance rights, gender perspective, privacy and security
Under the draft legislation, employers must promote the balance of the labor relationship of employees in the teleworking modality so that they enjoy decent and dignified work and equal treatment in terms of remuneration, training, education, social security and access to better job opportunities.
Likewise, employers must adopt a gendered perspective that allows reconciling personal life and the availability of female employees under the modality of teleworking during the work shift.
Mechanisms, operating systems and any technology used to supervise teleworking should be proportional to their objective, guaranteeing privacy rights for employees working under the teleworking modality, and enforcing the applicable legal framework regarding personal data protection. Video cameras and microphones should only be used to supervise teleworking in an extraordinary manner, or when the nature of the functions performed by the employee under the teleworking modality requires it.
The Ministry of Labor and Social Welfare will establish special health and safety conditions in an Official Mexican Norm. It will consider ergonomic, psychosocial factors and other risks that could cause adverse effects on the life, physical integrity or health of teleworking employees.
The guidance by the Ministry of Labor should be considered when implementing teleworking, including ensuring that employees have a suitable place at home to work and suitable mechanisms are in place to supervise and monitor the employees’ activities.
Our Employment and Compensation Practice Group can draft policies and addendums to employment agreements that may be required to properly document terms and conditions of teleworking.