Official Mexican Standard 037 that will regulate the health and safety conditions for teleworking as of December threatens to limit the practice of this modality. This is due to over-regulation, as it entails an important administrative and liability burden for employers, experts tell EL UNIVERSAL.
“The actual percentage of people in the formal sector currently working in the teleworking mode is not known, but what is a reality is that the majority of companies have opted not to enter into this modality because of the administrative burdens that it represents”, says Jimena Sánchez, partner at the De la Vega & Martínez Rojas Law Firm.
Six out of every 10 people work in the informal sector and of the remaining four, at least one, if not two, will work under flexible schemes, although not necessarily in teleworking, she estimates.
The Federal Labor Law establishes that a person is under the teleworking modality when 40% or more of their working schedule is conducted outside of their work center; otherwise, we are talking about a hybrid relationship, explains Adrián Castillo García, counselor at the Von Wobeser y Sierra Law Firm.
This difference is the one that is being made use of by companies that had launched the home office mode, but upon seeing the burdens and responsibilities that the new standard entails, seek to reduce the distance work performed by their employees to less than 40%,
“It will be very difficult for the employer to comply with the standard, it is better for it to remain within the limit for the work not to be classified as teleworking and avoid being burdened with responsibilities and administrative procedures that are difficult to comply with”, Castillo explains.
Overburdens in the standard
In the opinion of specialists, the measure establishes significant burdens on employers, thus discouraging the use of teleworking. First, it imposes on the employer the full liability for safety and hygiene in the teleworking mode, that is, it practically relieves the worker of any safety and health obligation, in Castillo’s opinion.
The employer has to supervise that the employee works under the safety and health conditions required by the government and, if this is not done, the employer gives the employee a list for him to self-verify the above.
“We leave the safety and health at work to the good faith of the worker, but if he electrocutes himself, the employer is to blame”, he points out.
Sánchez explains that another limiting aspect are the risk factors due to physical, psychosocial, and ergonomic aspects; knowing how the IMSS [Mexican Social Security Institute] will determine whether or not there is a risk in this modality also generates concern in companies.
Once the standard enters into force, there will be modifications to issues that will require a more in-depth evaluation, such as the way in which work accidents, labor risks, conditions such as anxiety, stress, and depression, which are currently not covered by insurance, will be determined.
The lawyer also notes the administrative burden, as there is a series of documents that must be prepared by employers to accredit compliance with the standard. For example, the list of the people working under the modality, as well as the mechanisms to be used for distance training.
It also includes the verification through which the employer accredits before the authorities that the people working under this modality have the necessary elements for providing their services remotely, the physical areas, the proper desk, the right chair as well as an area that has good illumination and ventilation. “This makes it harder to comply with the standard,”
Companies have stopped the implementation of teleworking because it is estimated that the majority of the people are not going to meet the metrics established by the standard. Additionally, several companies are not prepared to determine which of their employees are candidates to work under this modality, Sánchez says.
For Castillo “the economic side is not what becomes a heavy burden for companies, but the administrative and monitoring sides, in which the employer is responsible for the worker.
Room for corruption
Specialists suggest being on the lookout for the verification units, private entities authorized by the Department of Labor that will conduct inspections and verifications that will be valid for two years to accredit compliance with the modality.
That is, the employer will have to make an expenditure and hire a company that will be the only one that can give them the approval that they meet the requirements of the standard, which opens an opportunity for corruption, in Castillo’s opinion.
Sánchez, however, points out that verification units have worked well for accrediting the operation of other Official Mexican Standards. The important thing, she said, is that there is competition and more than one verification unit, allowing companies to select the one that meets their needs and is equally valid as the rest.
As things stand now, companies that already were in the teleworking mode are seeking to leave that scheme but maintaining flexibility without people doing over 40% of their working hours providing services from their domicile, specialists agreed.
Despite the burdens that the regulation establishes, Sánchez states that it is a great starting point for companies to have minimum standards to comply with.
In her opinion, the implementation period is relatively short and, therefore, it would have been better to conduct a process by stages in order to make this easier to implement and more manageable in terms of costs for the companies.
With the current text of the standard, the specialist does not see how things can be made easier for micro and small businesses; the metrics and the standard have been written for all companies, without distinction, regardless of the number of employees that they have, and this will stand in the way of teleworking for this type of establishments.
In any case, it is necessary to reduce the burdens and increase the incentives, particularly of a fiscal nature, for employers and workers to enjoy the benefits of teleworking, Sánchez concludes.
