On 11 January 2021, (effective the following day), amendments to the Federal Labour Act related to remote work and telecommuting modalities, pursuant to the amendment to Article 311 and in addition of Chapter XII-Bis (Articles 330-A to 330-K) were published in the Official Daily Gazette.
The reform to Article 311 conceptualizes “remote work” which is carried out in benefit of the employer at the domicile of the worker or at any other place chosen freely by the worker, neither being subject to surveillance nor immediate direction by the person who provides the work.
“Telecommuting” is defined in Chapter XIII BIS (Art.330-A) as a form of subordinate employment arrangement that meets the following characteristics:
Since it is an employment modality other than set forth in general employment conditions, telecommuting implies that special conditions be necessarily specified in writing. Likewise, the new obligations for both the employer and worker should be known and set out in the hiring.
Within the new employer obligations, we are able to find that the employer should provide the worker with the necessary equipment to carry out the activities in the telecommuting modality, which include computer equipment, printers, among other things. On the other hand, the worker, in the telecommuting modality, should make appropriate use of the equipment and tools, as well as report the maintenance and repair needs of such equipment and tools on a timely basis.
On one hand, the employer's relevant obligations contained in this reform is the obligation related to the fact that the employer must assume the payment of both communication and the proportionate part of electricity services, on the other hand, the worker in the telecommuting modality should report the costs agreed of telecommunications consumption from telecommuting for electricity services on a timely basis.
On the other hand, the Federal Executive Branch has 18 months to issue the Mexican Official Standard, which governs the occupational job security and health obligations for telecommuting.
Although, this new modality is significant and transcendent, it is undeniable that the tax implications arising from the new obligations generated have failed to be observed, specifically, the obligation related to absorbing both communication and the proportionate part of electricity cost by the employer in the present context.
Toward this end, it is important to analyse some scenarios in which this payment, support or absorption of costs by the employer could be developed:
At the time of making the practical application of the remote work and telecommuting labour reform, we would be faced with the above considerations, but consider that the tax authorities should generate agreements, rules and/or criteria quickly, in order to be able to establish the correct treatment for this new labour obligation.