Amendment to article 311 and addition of Chapter XII Bis to the Federal Labor Law, in connection with home office

12/01/2021

Pérez Correa González

Amendment to article 311 and addition of Chapter XII Bis to the Federal Labor Law, in connection with home office

Pursuant with the applicable reform, article 311 is amended; and Chapter XII Bis with articles 330-A; 330-B; 330-C; 330-D; 330-E; 330-F; 330-G; 330-H; 330-I; 330-J and 330-K, are added to the Federal Labor Law, in order to appear as follows, which will become effective the day after its publication:

Article 311 of the Federal Labor Law is modified to define home office.
The information technologies are highlighted, as well as their legal definition.
In order to be considered home office, the time spent outside the company´s office, must be greater than 40% of the total time of the day. It will not be considered as home office, when it takes place occasionally.
Certain aspects should be included in the employment agreement: (i) the equipment and labor supplies that are provided, (ii) the description and amount that the worker will receive for the payment of special services at home for home office; and (iii) contact, supervision, and distribution of schedules mechanisms.
Home office mode will be part of the collective labor agreement, applicable between unions and companies. In case there is a lack of one, the home office should be included in their internal work regulations.
Highlights new special covenants for employers, which can be supervised by labor inspectors: (i) providing, installation and maintenance of the home office equipment; (ii) assume costs of this mode, including, where appropriate, the payment of telecommunication services and the proportional part of electricity; (iii) implement information and data security mechanisms; (iv) to respect the right to disconnect for workers; and (v) registration of workers in the mandatory social security system.
Highlights new special covenants for workers, such as: (i) care of equipment and materials for home office; (ii) promptly report the agreed expenses derived from energy consumption and telecommunications services; (iii) use operating systems to monitor their activities, and (iv) comply with data protection policies, as well as restrictions on their use and storage.
The change from the face-to-face work mode to home office (is reversible) will be voluntary and in writing, except for force majeure cases.
Worker’s privacy must be guaranteed, while supervising home office. The microphones and video can only be used in extraordinary ways.
The NOM 035 will be related in order to guarantee the special health and safety conditions of the employee.