NOM-035-STPS-2018. A legal approach.

"Pleasure in the task puts perfection in the work." Aristotle.384 B.C.- 322 B.C.

In recent months, much has been said about the very popular Mexican official standard "NOM-035-STPS-2018 Factores de Riesgo Psicosocial en el trabajo-Identificación, análisis y prevención" (Psychosocial Risk Factors at Work-Identification, Analysis and Prevention). Psychologists, Human Resources experts, executive coaches and, in general, a number of professionals, have been captivated by this standard mainly because of the objective it pursues: the well-being of workers and the workplaces themselves. I have read little about lawyer's perspective about this norm, therefore, in this occasion, I would like to clarify some relevant points of this regulation from a legal perspective.

There are some considerations to comment on with respect to this rule, including its enforceability, implementation, penalties and finally some general inaccuracies in it's wording. In this paper I will focus only on the mandatory nature of the rule.

Before pointing out my observations, it is important to clarify that regardless of these, I am convinced of the benefits that this regulation will bring if the employers are really interested in its application, become aware of its benefits and understand that the objective of the regulation goes beyond burdening them with more obligations.

Having said this, I begin with my first observation: Obligatory nature.

It seems very clear that the obligation to implement this rule falls on the employer; Article 10 of the Federal Labor Law (LFT) tells us that the employer is "the individual or legal entity that uses the services of one or more workers". In most cases this is very clear; however, there are situations in which the obligation may be shared.

Article 13 of this Law states that "Established companies that contract work to execute it with sufficient elements of their own to comply with the obligations derived from the relationship with their workers will not be considered intermediaries, but rather employers. Otherwise, they will be jointly and severally liable with the direct beneficiaries of the works or services for the obligations contracted with the workers. For its part, article 14 establishes that "Persons who use intermediaries for the hiring of workers shall be liable for the obligations arising from this Law and for the services rendered."

Furthermore, article 15-C. states that "The company contracting the services must permanently ensure that the contracting company complies with the applicable provisions regarding safety, health and environment at work, with respect to the workers of the latter."

It is important that these provisions be taken into account, particularly in outsourcing companies and other less common forms of hiring personnel, since a shared obligation is being considered that is not defined by the law and that will have to be clarified when the authority intervenes through verifications, inspections and, if applicable, sanctions. Depending on a series of considerations, each case will have to be analyzed and the appropriate legal decisions will have to be made.

Continuing with the topic of obligations, this standard also has the particularity of defining obligations for workers. Basically, the obligations of the workers consist of cooperating in its implementation. The need for workers, for example, to answer the questionnaires and evaluations established by the standard would seem basic and even obvious; however, the information requested in these questionnaires could be perceived as very "sensitive" for some workers. That is why it is so important that the application of these questionnaires is carried out with prudence, knowledge and following the protocol that the standard itself indicates and not simply applying them massively.

Another important point in relation to the application of these questionnaires, which should be read with a magnifying glass, is that the standard establishes confidentiality, but at no time does it mention the word "anonymous" this is quite interesting since there has been much talk of applying anonymous questionnaires. This raises two questions, if its made anonymous, how will the worker be able to prove that he has complied with his obligation to answer his questionnaire? In the event that in the responses to some questionnaire or questionnaires on the identification of subjects to severe traumatic events, the need to be sent or sent to clinical assessment is detected, how would they know who it was? And finally, if some worker or workers do not wish to answer the questionnaires, what will be the consequences?

The issue of the application of questionnaires is interesting from a compliance point of view. It is clear that the application of this standard is divided into three levels depending on the size of the workplace, and that this size is defined by the number of workers in the workplace, and that this size is defined by the number of workers in it and not in the entire organization. Some obligations for those who have up to 15 workers, others more for those who work between 16 and 50 and others more particularly on the issue of a favorable organizational environment, for centers with more than 50 workers. Now, what is interesting is to identify the workers who will be the subjects of these questionnaires. The standard clearly states that they must be all and only allows an exception in the case of workplaces with more than 50 workers, offering a very simple equation to calculate the number of workers that can be evaluated as a representative sample.

However, doubts arise since there will be collaborators who do "home office", there will be temporary workers or who change location from one center to another in the same organization, there will be subcontracted personnel, people doing their social service or just doing work practices. They are all those “special” situations that require particular treatment and, if possible, the opinion of a legal professional as well.

With this Standard, the Ministry of Labor and Social Welfare has a long way to go. In order for it to be complete and reliable, verification will require meticulous work, both analyzing the documentary evidence and conducting the interviews. Much is expected of this regulation, even when we know that it requires a capacity in personnel and infrastructure that perhaps at the moment does not have. What can a worker who suffers because his workplace is not complying? We hope that the exercise of this standard does not stop at showing the results of anonymous questionnaires and a policy that nobody knows about. Work centers must pay attention and develop evidence in many aspects such as prevention of workplace violence, leadership, communication, training and social support, among other things.

Decent work is a constitutional right and as such it must be given the attention and place it deserves. Its dissemination is important not only for the employer, but also for the labor authority itself as part of the rights that Mexican workers have. Knowing the standard makes us aware that everyone, including managers and employers themselves, can be victims of these risks that must be prevented, mitigated, and addressed.

Note: This article was written on october 2019. On July 15, 2022 PROY-NOM-037-STPS-2022, TELETRABAJO-CONDICIONES DE SEGURIDAD Y SALUD EN EL TRABAJO was published at DOF.