On June 8, 2023, it was published in the evening edition of the Official Gazette of the Federation (“OGFDOF”) the Official Mexican Standard NOM-037-STPS-2023 Telework-Safety and Health Conditions at Work (“NOM-037”), which aims to establish the occupational health and safety conditions in places where employees provide their services under the teleworking modality in order to avoid accidents and illnesses, as well as to promote a safe and healthy environment in their work environment, and which is applicable to the entire Mexican Republic.
NOM-037 establishes several obligations, for both employers and employees who will work under the teleworking modality. Amongst the aforementioned obligations, employers must: (i) have an updated list of employees who work under the teleworking modality; (ii) establish a teleworking policy; (iii) inform employees and the Joint Commission for Safety and Hygiene (the “Comisión”) about the risks related to teleworking and possible exposure to ergonomic and psychosocial risk factors and agents; (iv) ) have a checklist containing the occupational health and safety conditions at work and shall comply with the safety and hygiene measures established by the Commission; (v) grant the necessary facilities in order for the Commission to perform the validation of the checklist containing the health and safety conditions at work (including photographic or video evidence) and the evaluation of potential risks, either through a verification in the place where the teleworking will be carried out, with the prior consent by the employee, or through a self-verification to be carried out, if applicable, by such employee in the workplace (the Commission may remotely verify the workplace with information technology or photographic or video evidence of the workplace and, in the same way, subsequent verifications must be carried out); (vi) establish processes of modification in the modality of work, or, the reversibility of it; (vii) provide maintenance to equipment for the management of the information technology; (viii) provide training, at least, once a year on health and safety conditions under the aforementioned modality; (ix) perform medical examinations; and (x) share with the Commission the checklist containing the health and safety conditions at work and the validation of said checklist, amongst others.
Moreover, NOM-037 obliges employees who provide services under the teleworking modality to: (i) provide the Commission, with his or her prior consent with written facilities to verify the health and safety conditions in the workplace, or carry out the self-verification of safety and health conditions at work prior to performing their activities under the teleworking modality and subsequently with the corresponding periodicity; (ii) comply with the teleworking policy; (iii) inform the Commission of any change in the health and safety conditions at work; (iv) safeguard and keep in good condition the equipment, supplies, materials, amongst others, provided by the employer for the development of their activities; (v) comply with the provisions on safety and health at work and submit to the medical examinations to be determined by the employer; (vi) comply with policies and mechanisms for data protection of information; (vii) inform the employer of any change of address; (viii) participate in the training provided by the employer; and (ix) attend the virtual or face-to-face meetings that are previously called by the employer.
As part of the purposes of NOM-037, it contemplates that the place or places agreed between the employer and the employees who provide or will provide their services under the teleworking modality, shall meet conditions of cleanliness, natural or artificial lighting, temperature and ventilation, noise levels that do not impede concentration (except environmental noise that is under the control of third parties), ergonomic conditions, desk, table or work plan, which can be verified through the checklists indicated in previous paragraphs, being the Commission empowered to verify that the health and safety conditions originally established continue in force.
Likewise, it establishes the right to disconnect during breaks for meals and those that occur during flexible hours, breastfeeding, end of the working shift, non-working hours, vacations, permits and licenses.
The standard provides that the employer will be empowered to hire the services of an accredited and approved inspection unit to assess compliance with NOM-037, which must issue an opinion when the employer complies with NOM-037 (which will be valid for two years), or it may be the labor authority the entity that evaluates the compliance of the aforementioned NOM-037 through inspection visits.
Finally, in accordance with the transitory provisions of NOM-037, it will enter into force 180 (one hundred and eighty) calendar days after its publication in the DOF.