On January 11, the Official Gazette of the Federation published a decree amending article 311 and adding chapter XII BIS of the Federal Labor Law on Teleworking, considering the following aspects:
• New definition of Telework.
• Regulation of Telework.
• Obligations and special rights of employers and workers.
Article 311 of the LFT defines Telework as that which is usually carried out for an employer, at the worker's home, or in a place freely chosen by him/her, without immediate supervision or direction from the person providing the work.
Chapter XII BIS sets out the characteristics of Telework, better known as home-office:
• It is a form of subordinate labor organization consisting of the performance of remunerated activities, in places other than the employer's establishment or establishments, so the physical presence of the worker is not required under the teleworking modality in the work center, primarily using information and communication technologies for contact and command between the worker under the teleworking modality and the employer.
• The worker under the teleworking modality or teleworker will be the one who provides their personal, paid, and subordinate services in a place other than the company's facilities or employer's source of work and using ICT (TIC in Spanish).
• Telework will be governed by this Chapter and will consider those activities carried out in more than forty percent of the time at the address chosen by the worker. Telework will not be considered as such when it is carried out occasionally or sporadically.
The working conditions will be recorded in writing through a contract, and each of the parties will keep a copy. Said contract must include:
I. Name, nationality, age, sex, and domicile of the parties.
II. Work's nature and characteristics.
III. Amount of salary, date, and place or form of payment.
IV. The equipment and work supplies, including those related to the health and safety obligations provided to the worker under the telework modality.
V. Description and amount that the employer will pay to the worker under the telework modality to cover services related to Telework.
VI. Contact and supervision mechanisms between the parties and the duration and distribution of schedules, provided they do not exceed the legal maximum.
VII. Other stipulations agreed upon by the parties.
The teleworking modality will form part of the collective labor contract, which may exist between unions and companies, and a copy of these contracts must be delivered free of charge to each of the workers who perform their work under this modality.
Employers who do not have a collective labor agreement must include teleworking in their internal work regulations and establish mechanisms that guarantee connection and contact between workers under this modality.
Employers will have some special obligations, including the following:
• Provide, install, and upkeep the necessary teleworking equipment such as computer equipment, ergonomic chairs, and printers, among others.
• Receive work on time and pay salaries in the stipulated form and dates;
• Assume the costs derived from work through the telework modality, including, where appropriate, the payment of telecommunication services and the proportional part of electricity.
• Keep a record of the supplies delivered to the workers.
• Implement mechanisms that preserve the security of information and data used by workers in the teleworking modality.
• Respect the right to disconnection of workers in the telework modality at the end of the working day.
• Register teleworkers to the mandatory social security regime.
• Establish the necessary training and advisory mechanisms to guarantee the adaptation, learning, and proper use of information technologies for workers in the telework modality, with particular emphasis on those who change from face-to-face modality to Telework.
• Workers in the teleworking modality are subjected to the following special obligations:
• Take the utmost care in the storage and conservation of the equipment, materials, and supplies that they receive from the employer;
• Provide timely information on the agreed costs for the use of telecommunication services and electricity consumption derived from teleworking;
• Obey and behave following the provisions on safety and health at work established by the employer;
• Attend and use the mechanisms and operating systems to supervise their activities, and
• Attend to the data protection policies and mechanisms used in the performance of their activities and the restrictions on their use and storage.
The change in the modality from face-to-face to teleworking must be voluntary and established in writing under this Chapter, except in cases of duly accredited force majeure. In any case, when a change is made to the teleworking modality, the parties will have the right to revert to the face-to-face modality, for which they will be able to agree on the mechanisms, processes, and times necessary to validate their will to return to said modality.
The mechanisms, operating systems, or any other technology used to supervise teleworking must be adequate to their objective, guaranteeing the right to the teleworkers' privacy. Video cameras and microphones may only be used to supervise work extraordinarily or when required by the functions' nature.
The STPS must issue, within the following 18 months, counted from the entry into force of that decree, an Official Mexican Standard (NOM), which will establish the particular safety and health conditions for the work carried out in the modality of telework; that is, it will consider ergonomic and psychosocial factors and other risks that could cause adverse effects on the life, physical integrity or health of teleworkers.
Now, it is important to comment that from the tax point of view, there is no clarity regarding the following issues:
1) Which will be the mechanisms to determine the proportion that the employer must pay regarding electricity and telecommunication services, as well as the means for the worker to demonstrate said proportion.
2) How the reimbursement of said expenses will be made to the workers, and what characteristic should be given to said reimbursement so that it is not considered taxable income for the worker.
3) How said expense reimbursement should be recorded in the worker's payroll CFDI and its periodicity.
In this sense, specific rules are expected from the Tax Authorities for the application of this provision.
Attached is the publication of DOF 01/11/2021, DECREE, which amends article 311 and adds chapter XII Bis, on Teleworking, to the Federal Labor Law.
Derived from the above in J.A. Del Río, we are at your service to answer any questions in this regard.