In 2022, more organizations are expected to bet on the Hybrid work, a combination of days with face-to-face activities and others with work from home. However, the model that is proposed in some organizations would seek to preserve the home office, but without applying the Telework reform, which turned one year into effect this week.
According to an investigation by the Talent Solutions firm of ManpowerGroup and Everest, the model 3-2-2 (three days at the office, two days at home and two days off) is the one that is predominant among the hybrid schemes that companies are adopting.
But in a five-day weekly shift, working from home for only two days implies working outside the workplace only the 40% of the working day, that is, the limit established by the teleworking reform so that the new provisions of the Federal Labor Law (LFT) are not applicable.
“There is a legal architecture to evade compliance with the teleworking reform, which above all has at least three objectives. The first is the protection of the worker who performs the remote work so that the employer’s obligations do not disappear, especially with regard to the equipment that the worker must receive for his or her functions. Another aspect has to do with avoiding the extension of working hours and a third aspect is safety and health at work ”, explains the labor lawyer Manuel Fuentes Muñiz.
On January 12, 2021, the Telework reform, a year later, its fulfillment is chiaroscuro. The regulation of remote work established the obligation of employers to provide work tools such as computers, in addition to paying for telecommunications expenses and supporting workers with the proportional share of electricity consumption.
However, the new regulation contemplates that to be applicable teleworking must exceed 40% of the working day outside the workplace. The 3-2-2 labor model that is adopted more frequently does not exceed the percentage set in the LFT.
Under this scheme, it emphasizes Manuel Fuentes, the objectives of the reform are lost because the new laws are not applicable and enforceable. “These three elements are those that are diluted in a relationship such as the one that arises with the scheme 3-2-2, in which to finally be working two days a week from home, it does not exceed 40% ”, points out the research professor at the Autonomous University of Mexico (UAM).
Compliance with telework regulationsSince its enactment in January 2021, it has been a matter of various interpretations. A few days after the reform was published in the Official Gazette of the Federation (DOF), the Ministry of Labor and Social Welfare (STPS) established a position in which it considered that the new provisions were not applicable in a context such as the pandemic , where teleworking was more forced than intentional.
A year later, with a recovery in mobility and epidemiological traffic lights allowing the reopening of offices, specialists consider that the justification of force majeure for not applying the new regulation is no longer viable and the companies that maintain this scheme should already be in place. regulatory compliance with the new provisions.
Jimena Sánchez, a partner at the firm D&M Abogados, believes that the pandemic was never sufficient reason not to apply the legal modifications. “The telecommuting it did not stop being teleworking due to a contingency issue. So, if you comply with all the assumptions set by the reform, that is, it represents more than 40% of your schedule and it is through the use of information technologies, it is teleworking regardless of the reason ”.
From the lawyer’s perspective, the 3-2-2 model is a legal way to maintain the Labor flexibility, granting the benefit of remote work, but without falling into the assumption established by the Federal Labor Law.
“Most of the work formats we have are five days of work for two days off. This means that we distribute our 48-hour shift over five days instead of six, which is the general rule. So, if we work from home for two days and go to the office for three days, we are not in the office. figure teleworking because it does not represent more than 40 percent. Even with this hybrid scheme, employers would be exempt from the payment of expenses, to assign work tools, “says the specialist.
A benefit and not a work scheme
For Sara Morgan, specialist in Labor Law and independent consultant, the 3-2-2 hybrid model it tends to become a provision superior to the law rather than a new work format.
“It is about workers and companies feeling comfortable with their ways of working and that it suits them both. If it suits a worker, maybe not covering 40% at home because you can’t, but covering 30% or 20%, you are helping the worker. In that aspect there is no contradiction, the law does not prohibit people from going home for two days, it only indicates that to consider it as teleworking it has to exceed the 40% of the schedule at home ”, he exposes.
In this vein, if an employer proposes to a worker to carry out their activities two days from homeThen it is a benefit because it is an alternative to care for both their personal health and its economy, says Sara Morgan.
For Manuel Fuentes, the practice has shown some legal loopholes that left the telework reform and that require a new modification so that people who perform remote work are not left unprotected. The percentage of the working day for the telework figure to be configured is one of them.
“There should be a reform of the reform where it is established that 40% is a reason for the protection of the worker, because it leaves him in limbo, without any type of responsibility of the employer towards the worker. That model 3-2-2 It is a model that benefits the employer more than the worker ”, says the specialist.
According to research by Bain & Company, one of the benefits to employers of establishing the telecommuting as a permanent alternative is the optimization of the corporate workspace, which can mean savings in real estate costs of between 15 and 30%, and a potential of up to an additional 20% through the redesign of operational processes.
