NOM-037: A crossroads for home office work in Mexico

Standard-037 seeks to establish the optimal safety and health conditions at the workplaces in which people work under the teleworking modality, also known as “Home Office”, even though its implications could be at risk of falling on the border of “over regulation”.

Note published on August 3 in Arena Pública, Políticas Públicas [Public Policies] by the Editorial Department.

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Teleworking, also known as Home Office, had not been looked at with this much urgency until the pandemic made it necessary to work from home. From that moment forward, the world of work changed for those who worked at an office. After a first adjustment to the Federal Labor Law in 2021, now the new standard 037 (NOM-037) [Official Mexican Standard-037], officially published in the Official Gazette of the Federation at the beginning of the month of June, seeks to establish the safety and health conditions at the places in which teleworking is conducted, precisely, from home.

This standard is applicable to any job in which a minimum of 40% of the activities are performed from home. Luisa María Alcalde, head of the Department of Labor and Social Welfare (STPS), previously shared the signing of the document related to this regulation. It is expected that the standard will enter into force six months after its official publication, that is, it will be in operation at the end of the year.

Official Mexican Standards (NOMs) are a set of technical regulations and standards established by the Government of Mexico through various government authorities and entities. NOM-037, in particular, has the objective of “establishing the workplace safety and health conditions at the places in which workers under the Teleworking modality perform their activities, with the objective of preventing accidents and illnesses, as well as promoting a safe and healthy environment at the work area”, according to the published document, in addition to this being applicable throughout the Mexican Republic and at all work centers with people working under the Teleworking modality.

This standard arises from the first adjustment made in 2021, which addressed the term “teleworking” and established the obligations that must be complied with both by employers and by workers.  The performance of paid activities at places other than the employer’s establishment and which did not require the physical presence of the worker at the work center was acknowledged.

But the new standard arrived to place a strict emphasis on the health and the working conditions at the employees’ work center. “Elemental conditions and specific prevention measures that must be adopted at the workplaces agreed upon by common consent by the employers and the teleworking persons were taken into consideration with the objective of preventing events that endanger their physical integrity, their life and their health by means of regulations in work safety and health at work matters in line with technological advances and a preventive approach in relation to occupational diseases and work accidents”, pointed out the Department of Labor and Social Welfare (STPS) in the bill that was submitted for public consultation in July of last year.

This standard was necessary. Jimena Sánchez, partner at the D&M Abogados Firm, specializing in labor matters considers that this regulation addresses the concerns that arose after a first approach at this regulation.

“For a long time, there was no entity that regulated distance work through ICT as we now have in regard to teleworking. In a post-pandemic period, many companies opted for returning to a 100% in-person mode, and I believe that many realized that the modality was here to stay”, she said in an interview. “The need for regulation arises, the reform on teleworking matters arrives in January of 2021 and many questions arise in consequence. how will we guarantee safety and health when the working person is not physically at the work center? What mechanisms can we implement? How can we ensure that people are at an appropriate place? There are many effects that could have consequences on the health and safety of the people working outside of the work center, which is why the need for regulation arises.”

Among the provisions included in the new standard, also known as the work-from-home regulation or the “Home Office Law”, the introduction of a series of responsibilities that companies and supervisors must comply with in regard to employees performing their duties under this modality stand out.

The benefits that the workers must receive include an ergonomic chair for performing their work, a proportional payment to cover internet and power costs, a functioning computer, a printer with ink and all of the necessary tools for performing their duties. Additionally, they have the right to disconnect after the completion of their work hours.

The Home Office Law establishes that employees must have a proper place to conduct their work, that complies with the necessary safety, illumination, ventilation requirements and is free of excessive noise. On the other hand, the companies and bosses have the obligation of providing employees that work at home with a contact directory to guarantee proper communication.

Nevertheless, the use of invasive mechanisms to verify the availability or connection of the employees is prohibited. Cameras, microphones, or location devices will only be mandatory for meetings, videoconferences, training, and aspects relating to safety and hygiene at the workplace. Regarding the obligations of workers in Home Office, the new law establishes that they must attend work meetings, either in person or by virtual means in order to avoid isolation and contribute to the organization of activities. These meetings must be requested in advance and not at the last minute.

These requirements place great emphasis on the safety and health of employees but, undoubtedly, raise the question of whether companies can assume the monetary and administrative responsibility that will be necessary to meet the requirements of this new provision.

The chiaroscuro of NOM-037

This standard will be applicable to all companies that, of course, work under the law and have a contract in place; that is, those that provide formal work, by legal nature. 32 million people in Mexico are working in informal conditions, which represents a 55.23% increase to the employed population of the country. According to the most recent data from the National Survey of Occupation and Employment (ENOE), the percentage of informality has increased from the 54.85% that was registered at the end of 2022. Both people that are vulnerable in regard to their work as well as those whose work source does not acknowledge their employment relationship or subordination are considered as belonging to the informal population.

This could cause companies working informally to lag behind, but the standard could even become a catalyst for this sector to increase.  “While we were reading it, we said, “they are over-regulating the teleworking mode”, this will cause many companies not to be willing to implement it. I believe that this is the effect that the standard caused, in a certain manner”, says Jimena Sanchez. “In my experience, the greater the rigidity, the greater the informality”, she specifies,

But additionally, companies may seek alternatives for their employees not to reach this 40% of their time in their work from home. On of the alternatives is a hybrid scheme, in which workers alternate their workdays between attending in person and home office.

“I believe that the scheme that most companies have opted for is a hybrid and flexible scheme, but one that does not fall into the category of teleworking, in order to avoid acquiring all of these burdens and obligations. In my experience, what I have seen the most are remote work policies, without falling in the category of teleworking and without the time that they work outside of the work center exceeding 40% of their working hours. I have seen that companies have opted for maintaining  one or two days depending on the format, but at least one day from home. Otherwise, neither the workers nor the employer would be able to comply with the obligations and the requirements”, points out Sánchez, who has represented national and international companies before the labor authorities.

But, as Sánchez explains, many companies are not prepared for adopting the responsibilities provided for in NOM-37: “They entail a considerable administrative burden for the employer, as it has to modify work contracts, include it in the regulation of the collective bargaining agreement and in the internal regulations, A record of all of the workers performing their work under this modality must also be kept, as well as a registry of the tools and supplies that will be provided; chairs, computers, headphones, keyboards, screens, etc. It also entails an additional economic burden, particularly from the perspective of administration and, of course, any expenses incurred as a cause of teleworking must be covered”, she said in an interview.

This regulation could represent a crossroads for Home Office in the country, as people could be forced to return to the in-person mode, although the modality of working from home has benefits for the workers. The established measures impose significant loads on employers, which could discourage the use of teleworking.

For Arturo Flores, product owner at Eintelligent, who went for an in-person modality to a hybrid modality as  consequence of the COVID 19 pandemic, remote work has brought with it benefits that he prefers over face-to-face work.  “It was a benefit in terms of time and rest. I can use the hours that I spent in transportation on time for myself. I prefer the hybrid modality and even, in the best case, I would work fully in the Home Office mode. I do not see the need for going to an office when you have the economic tools to conduct your work from home”, he said in an interview.

Despite the fact that NOM-037  arises from a first regulation, it is possible that it needs many more perspectives that encourage the creation of other standards. It is a field that is under exploration, but in which leaks and challenges must be detected from all possible perspectives; even if technology continues to be the order of the day, as regulation continues to be fundamental for development. “I always recommend, even when a hybrid scheme is implemented, that it is regulated and that people are aware of their rights and obligations, even when they are not working under the teleworking modality”, Sanchez recommends.

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