Mexico: The Right to Disconnect Q&A

The “right to disconnect”, or the ability of workers to disconnect from work-related communications and activities outside their normal working hours, has become a pressing issue following the COVID-19 pandemic and the widespread shift to remote and flexible working. While some workers may appreciate the increased autonomy and flexibility that remote working offers, others may face challenges in maintaining a healthy work-life balance, managing expectations and boundaries, and avoiding burnout and stress.

There are various approaches to the right to disconnect across jurisdictions. For example, while some jurisdictions rely on codes of practice, others address the right to disconnect via legislation, or restrict the right to teleworkers/remote workers only.

With different jurisdictions adopting or considering various legal and policy responses to address the right to disconnect, the below provides an overview of the current position in Mexico.

This Q&A is part of a series providing an overview of the current position and developments in 15 countries, highlighting the main challenges, opportunities, and best practices for employers and employees. This series includes contributions from Mayer Brown’s Employment & Benefits team and local counsel.

1. Is there a right to disconnect in your jurisdiction and, if so, when did it come into force?

Mexican Federal Labor Law (“FLL”) was amended on January 11, 2021, to include the right to disconnect for employees working remotely (telework). This provision inserted in a specific chapter of the FLL governing teleworking (article 330-E section VI) and therefore, it is only applicable for those employees working 40% or more of their time away from the office or the employer’s work site. Additionally, mandatory regulation on health and safety matters during telework (NOM-037), published on June 8, 2023, defines “Disconnection” as the employee’s right to move away from work and refrain from participating in any kind of communication with the work site, upon conclusion of the work shift, in non-business hours, vacations, leaves of absence and permits.

Although there are efforts at the Mexican Congress to extend the right to disconnect, it is currently limited to teleworkers.

2. Is the right governed by legislation, a code of practice or both?

The right to disconnect in Mexico, with its current scope of application for telework, is both governed by the FLL and mandatory regulations NOM-037, which establishes rights and obligations to employees working remotely.

3. Do all employees have a right to disconnect?

No. As noted above, only employees who work 40% or more of their time away from the employer’s office or work site.

4. Are all employers obliged to provide the right to disconnect?

Only employers who have agreed with its employees for the latter to work remotely under the legal requirements of telework, are obligated to provide the right to disconnect.

5. What are the obligations on the employer?

The employer is obligated to implement a teleworking policy, where it would be advisable, although not legally required, to include the right to disconnect. There is no specific obligation to have the right to disconnect in writing, in a policy or internal regulation, but only to “respect” such right of teleworkers.

There is a mandatory provision in the FLL where an employee working beyond the maximum weekly work shift (i.e., 48 hours) or the maximum contractual work shift, is entitled to overtime pay. The first nine hours exceeding the maximum weekly work shift must be paid at double the employee’s hourly rate; as of the 10th hour of overtime, the employer must pay triple the employee’s hourly rate. In this latter case, employers may also be subject to penalties from Mexico’s Department of Labor.

6. What happens if an employer fails to comply with its obligations?

Mexico’s Department of Labor has the capacity to conduct inspection visits to verify employers’ compliance with labour and employment obligations. Accordingly, if an employer fails to comply with the obligation to observe its employees’ right to disconnect during telework, the employer will be sanctioned with a penalty ranging from 50 to 5,000 times the Measurement Unit (“UMA”), representing a penalty from USD285.00 to USD28,285.00, approximately. The UMA is a parameter issued by the Mexican government that increases every year based on the inflation rate published by the Central Bank, which is the basis of calculation for any penalty imposed by a government agency.

Theoretically, the employee undertaking telework may also file a claim against its employer for failing to respect the right to disconnect before a specialized Labor Court. However, this rarely happens because there would not be a sanction or consequence for the employer, other than confirming it is bound by this obligation.

7. Have there been any reported cases on the right to disconnect?

The right to disconnect is limited to telework and its inclusion as an obligation in the FLL is from January 2021; therefore, there are still no reported cases on the right to disconnect before Mexican Labor Courts.

8. What are the benefits and challenges of the right to disconnect in practice?

The benefits of the right to disconnect are an improved work-life balance for employees, which will also allow better mental health and have a positive impact on productivity. The right to disconnect may also become an effective tool to attract and retain talent, reduce absenteeism and turnover. In practice however, there are many challenges in Mexico in industries and economic activities that operate several shifts a day, on weekends and holidays, which require support personnel to be on-call. Service and maintenance areas could be heavily impacted if they are not able to attend to the needs of clients and customers due to their employees’ right to disconnect.

9. Has the right to disconnect had a significant impact on the workplace since it came into force?

Derived from the fact that the right to disconnect in Mexico is currently limited to activities performed during teleworking, and that it has only been regulated since 2021, there is still no evidence of a significant impact in the workplace.

10. Are there any changes on the horizon relating to the right to disconnect in your jurisdiction?

Although there is a proposal in the Mexican Congress to amend the FLL to expand the right to disconnect to other activities, it is unclear if it is a priority of Mexico’s current government.

AUTHOR FROM GARRIGUES
Alfredo Kupfer Domínguez, Partner