On June 8^th, 2023, it was published in the Official Gazette of the Federation the NOM-037-STPS-2023, Telework-Conditions of Safety and Health at Work (the “NOM-037“), issued by the Ministry of Labor and Social Prevention, the purpose of which is establishing the minimum conditions to which all labor relationships based on Telework must be subject to in order to guarantee the safety and health of workers who work remotely, away from the employer’s facilities, as well as to promote a safe and healthy work environment.

In accordance with the provisions of the Federal Labor Law (the “Law“) and the same NOM-037, Telework is defined as that form of subordinate labor organization that consists in the performance of paid activities in places other than the workplace, which does not require the physical presence of the worker under the modality of telework in the workplace, using information and communication technologies for the contact and command between the worker under the modality of telework and the employer (“Telework“).

Based on the definition of Telework, NOM-037 establishes a series of obligations for both the employer and the workers who will perform their work through this modality.

I. Obligations of the Employers under the Telework modality.

In the case of the employer, its obligations consist mainly of the following:

1. Have an updated list of workers under the modality of Teleworking, which complies with at least the following information: (i) Name of the worker; (ii) Gender; (iii) Marital status; (iv) Activities to be developed; (v) Name and profile of the position; (vi) Percentage of time worked outside the workplace; (vii) Contact telephone number; (viii) Address; (xi) Proposed place of work to perform work; (x) Name of the employer and address of the workplace; and (xi) List of computer equipment and ergonomic furniture delivered to the worker.
2. Establish a Telework Policy, aligned with the Collective Labor Agreement or the Internal Labor Regulations. The Policy shall contain, at least, the following: (i) Promotion of the culture of risk prevention; (ii) Communication mechanisms; (iii) Rules of contact between collaborators, protecting privacy; (iv) Working day; (v) Express indication that the rights of teleworkers cannot be inferior to those of workers present in the work center; (vi) Promotion of the gender perspective and the conciliation of the personal life; (vii) Promotion of the balance between work and personal life; (viii) Promotion of the health of teleworkers; (xi) Mechanisms for reporting a change of address; (x) Responsibilities of teleworkers; and (xi) Mechanisms for the reversibility of Telework.
3. To inform to its workers and to the Commission of Security and Hygiene of the center of work on risks linked to the Telework.
4. To have a checklist of safety and health conditions in Teleworking, which must be validated by the Health and Safety Commission, with visits to the workplace (with the worker’s authorization) or allow the worker to self-apply it. Health and safety training must be provided annually. There must also be photographic evidence of compliance with the corresponding checklists.
5. Establish a process of transition to Telework and reversibility, which should provide, at least:

• Form of communication between the worker and the work center;
• Times when the teleworker must report to the work center;
• Form of Telework supervision; and
• Form of maintenance of computer equipment.

6. To provide people under the Telework modality with the appropriate equipment for the development of their activity, including objects such as an ergonomic chair and the necessary means for the fulfillment of work activities.
7. They shall perform the necessary medical examinations, in accordance with the applicable regulations and the protocols established by the social security institutions.
8.Establish care mechanisms for cases of domestic violence that consider at least a return to the modality of presential work at the work place, on a temporary or permanent basis.

II. Obligations of the workers under the modality of Telework.

On the other hand, the workers who work under the Telework modality must comply with the following obligations:

1. Provide facilities to the Health and Safety Commission of the work center to verify the health and safety conditions of their workplace or self-apply the checklist.
2. Workers under this modality must comply with the Telework Policy that the employer makes available to them.
3. To inform the employer about fortuitous cases or force majeure that prevent the development of Telework, indicating date of elaboration of the notice, name of who elaborates the notice, the description of the facts and its date of occurrence.
4. Keep equipment and material provided by the employer in good condition.
5. Submit to medical examinations and observe health and safety measures of NOM-030-STPS-2009.
6. To comply with data protection policies.
7. Report changes in the address of the remote workplace, indicating the date of preparation of the document, the name of the person who prepares it, the date of change and the description of the change.
8. Participate in trainings on social isolation.
9. Notify the employer and the Health and Safety Commission of any occupational hazards suffered.

III. Occupational health and safety conditions.

In addition to the aforementioned, NOM-037 also establishes three types of occupational hazards that may exist during Telework, which we will develop in general: 

• Physical risks: The worker must have a clean and orderly work area, with no unnecessary materials or objects in the workplace, lighting that does not cause glare, adequate temperature and ventilation, and a noise level that does not prevent him/her from concentrating on his/her work.
• Ergonomic risks: The worker must have a comfortable physical space to avoid body tension (ergonomic chair, ergonomic accessories that support the use of computer equipment, among others).
• Psychosocial risks: The worker must have a workspace that avoids interruptions, flexible working hours that make it possible to reconcile work and personal life, breaks and rest periods, and respect for the worker’s right to disconnect from work.

IV. Final considerations.

• NOM-037 will become effective 180 calendar days after its publication in the Official Gazette of the Federation, that is, as from December 5^th, 2023.
• Pursuant to Chapters 9 and 10 of NOM-037, the employer will have the option to hire the services of an Inspection Unit accredited and approved under the terms of the Quality Infrastructure Law and its Regulations, to evaluate compliance with NOM-037.
• NOM-037 includes examples and guides that serve as an aid in preparing the lists and complying with the requirements established in said Standard. However, these examples are merely a support and adhering to them does not exempt employers from a possible breach of their responsibilities and obligations, so they must ensure that they have all the necessary documentation and adhere to all applicable regulations.
• It should be noted that in accordance with the Law and NOM-037, it is established that in order to determine if a worker is a candidate to work in the Telework modality, he/she must perform more than 40% of his/her weekly workday at the worker’s home. It will not be considered Telework that which is performed occasionally or sporadically.

WARNING: This newsletter only refers to general aspects related to the subject matter to which it refers, so it should not be considered by its recipients as an individualized and punctual advice from Rios Zertuche, González Lutteroth y Rodríguez, since the proposed analysis must be broadened and deepened for each specific case and/or situation.