Mexico’s Outsourcing Ban Delayed, New Rule on Teleworking, NOM-035 “Mental Health” Compliance Update

December 18, 2020

The end of 2020 has been busy in Mexico with a flurry of important HR and labor related changes happening over recent weeks.  NOM-035’s compliance took effect despite delayed inspections, Mexico’s Senate approved a bill regarding telework, and the outsourcing ban decision was postponed. HR Policy Global would like to provide a summary of these critical updates and their implications before entering the holiday season. 
 
Legislative Vote on Outsourcing Ban Delayed until February
 
Last week, in an agreement with industry groups, Mexico’s Congress postponed debate of the updated outsourcing ban proposal until February 2021.  HR Policy Global provided a deep-dive analysis [link] on this issue. 
 
Mexican government on the move of imposing new teleworking obligations on employers
 
This month, Mexico’s Senate approved a bill amending the Federal Labor Law (FLL) regarding telework. The amendments mainly focus on regulating the conditions, obligations, and rights of teleworking and clarify that remote work tasks must constitute more than 40% of working hours to be considered “telework”.  Once telework is officially determined, employers have several new obligations including:
  • Employers must provide, install, and maintain the equipment necessary for teleworking.  
  • Employers are also required to reimburse the telephone, internet and electricity costs derived from teleworking, 
  • Employers must guarantee an employee's “rights to disconnect”. However, details have yet been specified.
Additionally, the employer is required to establish a written agreement with teleworkers, including working equipment and supplies provided, duration and distribution of schedules, and working conditions under applicable collective bargaining agreements. 
 
Lastly, similar workplace health rules, like NOM-035, are required to be extended to teleworkers, after the entry into force of this reform. Therefore, companies should keep the NOM-35 guidance in mind when implementing teleworking to ensure the employees’ safety and well-being at home.
 
NOM-035 Company “Mental Health” Guidelines Take Effect – Without Inspections
 
Mexican Official Standard NOM-035-STPS-2018 (“NOM-035”) establishes guidelines to prevent “psychosocial” (mental health) risk in the workplace.  The Standard was passed in 2019, and companies need to comply with all the provisions by October 2020. Companies are obligated to establish a psychosocial risk prevention policy, identify risk factors, and adopt a control measurement aimed at reducing those risks.  Additionally, employers are required to provide medical exams and psychological evaluations to employees exposed to labor violence and/or psychosocial risk factors and keep records of all related matters. 
 
Despite thousands of delayed inspections due to the COVID-19 pandemic, any irregularities or non-compliance infractions could still be fined penalties ranging from 21,720 pesos ($1,096 USD) to 434,400 pesos ($21,930 USD), depending on the size of the company and the severity of the offense.  
 
Since the start of the pandemic, most companies have been deprioritizing their compliance with NOM-035.  Even for companies that identified psychosocial risk factors before the 2020 deadline, these results may no longer ben accurate due to an increasingly anxious and depressed workforce resulting from the COVID-19 pandemic. 
 
Companies are hence advised to reevaluate workforce’s mental health risk factors, update related workplace policies and pursue solutions to improve workforce mental health.  For companies which have yet to enact a plan, it is a good time to establish internal strategies to comply with the NOM-035 requirements.
 
Outlook: Mexico’s labor landscape remains uncertain and complicated. As always, HR Policy Global will be working with our global and local partners to bring timely updates, provide practical advice, and share best practices among members.