The purpose of this note is to analyze telework as a reasonable accommodation to enhance employment opportunities and promote the inclusion of employees with disabilities, with legal bases from the General Law for the Inclusion of Persons with Disabilities (“LGIPD”).
Background
On January 11th, 2021, Chapter XII Bis was added to the Federal Labor Law (the “FLL”), introducing regulations for the Telework modality. This addition was made to establish parameters and rules for the proper implementation of this modality, which had emerged as necessary a result due to the COVID-19 pandemic.
On June 8th, 2023, NOM-037-STPS-2023 (the “NOM”) was published, an official Mexican regulation that established the safety and health conditions governing telework, in line with the accessibility and reasonable accommodation obligations set forth in the LGIPD in order to prevent accidents and illnesses, as well as to promote a safe and healthy work environment.
Both the FLL and the NOM recognized rights in favor of teleworkers, one of the most significant ones being the right to equal opportunities and non-discrimination. This principle is also set-forth in Article 4 of the LGIPD, which prohibits any form of discrimination and mandates the implementation of affirmative actions and reasonable accommodations to ensure the full inclusion of individuals with disabilities.
Although there is no specific regulation on teleworkers with disabilities, one of the obligations imposed on employers is to ensure that the location designated by the employee for remote work complies with safety and health conditions to prevent any occupational risks. In light of the LGIPD, this must be interpreted to mean that companies are legally required to implement necessary reasonable accommodations, including telework, when a disability so requires, provided that it does not impose a disproportionate burden.
Based on the above, it can be concluded that an employer seeking to implement telework for an employee with disabilities must ensure that appropriate conditions are in place for the employee to perform her duties from the chosen location without posing any risk to either the employee or the employer, in compliance with the principles of reasonable accommodation set forth in the LGIPD (Article 2).
Reasonable Accommodation
Efforts to promote equal opportunities and inclusive environments for people with disabilities have increased, driven by the legal obligation to implement inclusion policies and reasonable accommodations pursuant to the LGIPD. Examples of these initiatives include the creation of laws and public policies, as well as the development of corporate programs aimed at eliminating any form of discrimination against individuals with disabilities.
Article 2 of the LGIPD defines “reasonable accommodation” as necessary and appropriate modifications and adjustments that do not impose a disproportionate or undue burden, when required in a particular case, to ensure that persons with disabilities can enjoy or exercise all human rights and fundamental freedoms on an equal basis with others.
In recent years, telework has been proposed as a tool and/or solution to ensure equal access to employment opportunities for people with disabilities.
Telework as a form of reasonable accommodation remains a theoretical concept; however, it has become a legal obligation when viable and not excessively burdensome for the employer, in accordance with the LGIPD, and is also a practical and viable option for both companies and public sector entities for promoting equal opportunities for individuals with disabilities.
Currently, there is no established parameter or legal standard that determines what should be understood as a disproportionate or undue burden on the company.
Advantages
Given that teleworking continues to be a prevalent modality for employees in certain companies, reframing it as a reasonable accommodation raises the possibility of its implementation and even its enforceability in the workplace.
It is clear, though that not all individuals with disabilities need or wish to work remotely, and that not all jobs are suitable for telecommuting due to their nature. However, denying telework when it is feasible may be considered a discriminatory practice prohibited by the LGIPD. Allowing an employee with the option to work from home may constitute a reasonable accommodation for those whose disability prevents them from adequately performing their duties in a traditional workplace setting.
Although employers that allow telecommuting must provide workers with financial support to meet health and safety requirements, as well as to cover workrelated expenses such as electricity and Internet, these costs do not constitute a disproportionate expense or an excessively onerous burden. This allows us to consider teleworking as reasonable accommodation, under the LGIPD.
Despite the costs that implementing this modality may entail for employers, we believe it ultimately benefits companies by expanding their pool of skilled workers, thereby contributing to their economic growth, and ensuring compliance with legal obligations regarding inclusion and non-discrimination.
Conclusions
Notwithstanding the lack of specific regulation in this regard, the LGIPD is binding on both the private and public sectors (Article 3) and establishes the duty to implement reasonable accommodations to guarantee the labor inclusion of individuals with disabilities. Therefore, considering telework as a reasonable accommodation and a means of fostering inclusion in the workplace is a legal obligation and a key concept for employers to consider.
The implementation of this type of modality contributes to compliance with national regulations on equal opportunities and universal accessibility.
If companies choose to allow employees with disabilities to work remotely, they must comply with the obligations and procedures established for all employees in general under Chapter XII Bis of the FLL and NOM-037-STPS-2023.
