73% of those who do home office have not received the support required by law

The telework reform which came into force in January of this year established that the new provisions are applicable when a worker works 40% or more of their weekly working day at a different address from the workplace. In Mexico, although six out of 10 people who work remotely meet this criterion, only a small part has had their contract modified and access to their services guaranteed. rights as a remote worker.

According to a survey by OCC Mundial, the 73% of workers in home office who complies with the time established by law to be considered as a teleworker has not had adjustments to his contract and, therefore, his employer has not given him the work tools or the payment of telecommunications services or the proportional part of the consumption of electricity, as marked by the reform that was approved in the framework of the pandemic.

Only 27% of the universe subject to new telework rules has signed a modification to its contractual conditions to give certainty to the modality. However, even among those who have established remote work by agreement with their employers, not all have benefited from the new provisions established with the reform.

Among the workforce that already had an adaptation to their contract, only 26% were given equipment and material to work from home, the rest – like those who maintain their contractual relationship unchanged – continue to bear the costs of teleworking. Meanwhile, only 13% observed adjustments in their working hours, including digital disconnection.

The telework reform was promulgated on January 11 of this year and in that same month the Ministry of Labor and Social Welfare (STPS) established a position in which it was ensured that the legal modifications would not be applicable in a context of health emergency in the that home office it was a forced modality and not optional. In that sense, the new rules would be applicable after the pandemic.

One year later, with the economic reactivation, the advance in vaccination, the decrease in infections and the recovery of mobility. Is the same criterion applicable? From the perspective of Alfredo Kupfer, partner of the Sánchez Devanny firm, in the current context teleworking begins to be a more optional mode than a forced strategy, since epidemiological traffic lights already allow the return of workers to offices.

“The telecommuting has been in a cloud of interpretation as to whether it is truly applying the legislation that was published in January of this year due to the fact that we were facing a force majeure and probably prevented us from complying with all obligations. But beyond this interpretation, we are entering the lowest levels of the alert where the occupation of offices and work centers is already opening ”, explained the specialist.

Against this background, Alfredo Kupfer added, the companies that maintain remote work schemes They could already be required to comply with the provisions of the teleworking reform. “If this is a trend that is going to continue during 2022, it is important that we identify each of the obligations that we must fulfill because it must be documented.”

Both internationally and locally, various organizations have announced that they will opt for teleworking permanently. Recently Grupo Financiero Banorte informed all its staff that from the following year they will be able to choose three different work modalities: face-to-face, hybrid or remote.

“Companies are reconfiguring their organization to define who is going to telecommute, who is going to be 40% or more out of the organization and who is going to be out for two days or one day and do not fall within the definition. They are still reconfiguring teams and finishing defining who they are. eligible for telecommuting to activate aid and a series of policies that should govern telecommuting ”, explained Julieta Manzano, Commercial Director of Mercer México.

According to the firm, companies in Mexico are agreeing with their workers a monthly support of between 300 and 500 pesos for the payment of telecommunications and electricity services.

The moment to comply with the reform

Carlos Ferran Martínez, managing partner of the firm Ferran Martínez Abogados, believes that there are still doubts about whether the reform is applicable in the current context, because the authority has not ruled on how the end of health emergency for the pandemic. But he agrees on the importance of adapting the contracts.

“Right now the discussion of who is going to stay is beginning to be relevant working telecommuting. In short, there is a recovery in mobility, in economic activity, many companies returning in stages or in their entirety, and others that do not intend to return and here the question and the analysis that must be done is how much of my staff is going to stay working in the telecommuting modality ”, points out the specialist.

The lawyer considers that it is now a good time to analyze and define which jobs will remain in remote work and make the corresponding adjustments.

“The teleworking issue cooled down a bit with the outsourcing reform, but frankly we are facing the redefinition of the work model in Mexico and this teleworking frame he is called to be a protagonist in the coming years of Mexican labor relations ”, he stated.

Less than 40% of working time?

For Manuel Fuentes Muñiz, research professor at the Autonomous University of Mexico, the challenge of telework implementation It not only lies in modifying the contractual relationships, but in guaranteeing compliance with the new provisions, which has not happened among those who have already signed the changes in their contracts.

“What some companies have done is that where they have teleworking, they establish that the modality does not exceed 40% of the time to evade any responsibility that derives from it, such as paying for electricity, the internet or the tools that they must give to the workers ”, affirms the labor lawyer.

In this sense, Fuentes Muñiz believes that the teleworking reform left gaps in operational matters, because the labor inspectors They cannot go to the worker’s home and base their verification on records, which may indicate that people work less than 40% of their working hours outside the workplace, although in practice it is different.

One of the problems facing the monitoring of compliance with the reform, adds the specialist, is that the legal modifications were not accompanied by a strengthening of government instruments to supervise it. “A rule that is not monitored it is a norm that is not fulfilled, it is the golden rule in the administration ”, emphasizes the specialist.

Carlos Ferran affirms that it cannot be forgotten that Federal Labor Law demands various points. “If the companies do not carry out this review, we have been in this health situation for enough time, the claims of the workers who have been teleworking in fact for almost two years will begin to come. I think that doing nothing can permeate a work environment issue because working people do have on the radar that there is current legislation, with everything and how debatable that can be, and that there are rights and obligations ”.


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