On June 8, 2023, NOM-037-STPS-2023, on Teleworking-Safety and Health Conditions at Work (“NOM-037”), was published in the Official Gazette of the Federation (“DOF”).

The purpose of the NOM-037 is to establish the occupational health and safety conditions in workplaces where employees under the Telework modality carry out their activities, in order to prevent accidents and illnesses, as well as to promote a safe and healthy work environment. The measures mentioned in NOM-037 must be applied to prevent events that affect the physical integrity, life and health of employees who are working under the Teleworking modality. It establishes that the workplaces used by employees under the Teleworking modality must comply with the following conditions:

• Have connectivity for the use and management of information and communication technologies; and
• Have healthy and safe conditions at work, with emphasis on the good condition of electrical installations, lighting, ventilation and ergonomic conditions.

NOM-037 establishes the following obligations of the employer:

1. Have an updated list of workers under the Telework modality. The confidentiality of the data contained in the list will be the responsibility of the employer.
2. Establish a Teleworking Policy.
3. Have a Checklist for health and safety conditions in teleworking.
4. Grant facilities for the Mixed Safety and Health Commission (“Mixed Commission”) to validate the Checklist for health and safety conditions in teleworking (including photographic or video evidence), and the evaluation of possible risks. The employer may choose to:

• Carry out a visit to the proposed workplace, where the Teleworking would be carried out, with the prior authorization of the employee, or
• Provide the teleworker with the Verification List, which, through its self-application, makes it possible to know whether or not there are safety and health conditions at work. If applicable, to corroborate the information on the Checklist, the Mixed Commission may request the employee to check the workplace remotely, supported by technology, or photographic or video evidence of the workplace.

In the event that the workplace proposed by the employee under the Teleworking modality does not have proper health and safety conditions, Teleworking cannot be carried out.

5. Establish and document the telework implementation process and its reversibility.
6. Provide an ergonomic chair; the inputs necessary for adequate performance; and where appropriate, the additions that guarantee ergonomic or postural conditions of the worker during his working day.
7. Establish and document the way to provide maintenance to the equipment for the management of information and communication technologies provided.
8. Provide training to the teleworker at least once a year on health and safety conditions that they must have and maintain.
9. Carry out medical examinations of the teleworker and follow up on telework accident notices.
10. Share the Checklist, its validation, photographic or video evidence, lists of goods, and computer equipment provided, to the Mixed Commission.
11. Have care mechanisms for cases of family violence that consider, among others, the return to face-to-face modality.
12. Provide support and facilities for the teleworker to participate in the Mixed Commission or in the Training and Productivity Commission.

Likewise, according to NOM-037, teleworkers will be obliged to do the following:

• Provide the Mixed Commission with the facilities to verify the workplace;
• Comply with the Telework Policy;
• Inform the employer and the Mixed Commission of any change in the health and safety conditions at work, or cases of force majeure, that prevent the development of Teleworking;
• Keep in good condition the equipment (including computer equipment), materials, tools, and ergonomic furniture that, where appropriate and in accordance with the needs of their position or activity, provide them with the employer to carry out Teleworking;
• Observe the provisions on safety and health at work, and submit to medical examinations;
• Comply with the data and information protection policies and mechanisms established by the employer in the performance of his activities as an employee under the Teleworking modality, as well as the restrictions on its use and storage;
• Inform the employer in writing and in advance of any permanent or temporary change of address;
• Participate in the risk information processes related to your Teleworking and training activities provided by the employer, as well as in face-to-face or virtual meetings organized to avoid social isolation; and
• Notify the employer and the Mixed Commission of the work risks suffered.

The NOM-037 will enter into force 180 calendar days after its publication in the DOF.

Sánchez Devanny Labor, Social Security, and Immigration Group has the knowledge and experience to assist in complying with the obligations established in the Federal Labor Law, NOM-037, and prepare the backup documentation.

This bulletin was prepared jointly by Alfredo Kupfer-Domínguez ([email protected]), Fermín Lecumberri-Cano ([email protected]), and Sebastian Rosales-Ortega  ([email protected]).