On January 12, 2021, the right to disconnect (known in other countries as the “right to digital disconnection”) became an employment right in Mexico for employees in telework arrangements, with the publication of an amendment to the Federal Labor Law (FLL) in the Official Gazette of the Federation (Diario Oficial de la Federación) the day prior.
The main purpose of this amendment to the FLL was to reform Mexico’s existing teleworking regulations. Some of the principal provisions under the new law establish:
- the difference between working off-site and a telework modality;
- the terms that must be included in employment agreements formalizing a telework arrangement;
- specific rules that apply if a collective bargaining agreement is in place;
- limitations on the mechanisms to supervise telework;
- the special duties and functions of the Ministry of Labor and Welfare’s (STPS) officers to confirm compliance with the teleworking requirements; and
- employers’ special obligations to teleworkers, including to respect workers’ rights to disconnect after work hours.
The right to disconnect is the right of employees under a telework arrangement to disconnect from work at the end of the workday. This includes the right to disconnect from digital devices or any other information and communication technologies during off-hours or outside assigned or agreed-upon working hours, as well as during leaves of absence (e.g., maternity, illness, occupational risks, or others), and other applicable situations..
This means that during off-hour periods, teleworking employees have the right to not be contacted and have no obligation to be available. Under the law, employers may not mandate that employees reply or answer any communication outside of working hours.
The rationale behind incorporating the right to disconnect into employer’s obligations under the new law is that telework can infringe upon employees’ maximum working shifts, as well as intimacy and privacy rights, all of which are considered constitutional rights in Mexico, in the ongoing search for balance between flexible work arrangements and the reasonable use of digital devices.
Because the FLL amendment provides that STPS officers have the authority and duty to verify whether employers are complying with telework obligations, including respecting the right to disconnect, employers must have physical evidence of compliance.
In instances of failures to achieve evidencing compliance, the STPS has the authority to impose monetary fines that will range from 50 to 5000 Unidad de Medida y Actualización (UMA), which is the unit officially used by Mexican authorities to impose penalties. One UMA is equivalent to MXN 96.22 (which is approximately 5 USD). This range will vary depending on the intentional or unintentional character of the action or omission, the severity of the noncompliance, any occasioned harm, the infringer/employer’s economic capacity, and if there has been a recurrence of the infraction.
Although Mexico’s telework regulations obligate employers to respect the employee right to disconnect, the provisions fail to define the precise parameters of the right and do not offer direction as to how employers are to comply with this obligation. Even so, there are measures employers can implement to help support teleworkers’ digital disconnection. For example, employers might consider having formal telework or right-to-disconnect policies that set forth when the workday begins and ends. Additionally, employers might afford managers the discretion to request additional hours or more time commitments from teleworking employees for special projects or when under relevant deadlines, but permit work outside normal hours only if an employee consents as a key feature. Finally, employers might strive to protect employees from any punishment or retaliation when exercising their right to disconnection.
Ogletree Deakins’ Mexico City office will continue to monitor and report on developments with respect to teleworking requirements and employees’ right to disconnect in Mexico and will post updates on the firm’s Cross-Border blog as additional information becomes available.