EXECUTIVE OVERVIEW

The Official Gazette of the Federation published the Norma Oficial Mexicana NOM-035-STPS-2018, regarding Psychosocial Risk Factors in the Workplace—Identification, Analysis, and Prevention (the “NOM”), on October 23, 2018. The purpose of the law is to establish guidelines to identify, analyze, and prevent psychosocial risk factors, as well as to promote a favourable organizational environment in all workplaces throughout the national territory. 

The NOM states that it is the employer’s duty to establish in written form, implement, sustain, and disseminate a policy for the prevention of psychosocial risks.

The policy shall include the following:

a. Prevention of psychosocial risk factors.
b. Prevention of harassment and violence in the workplace.
c. Promotion of a positive organizational work environment. 

Workplaces will have different obligations depending on the number of employees:

A. Workplaces with up to 15 employees shall: 

1. Identify those employees who might have suffered from severely traumatic events during or because of work and direct them to a social security institution or private health center, as well as to the workplace’s physician.
2. Disseminate and promote information among their employees regarding: 
   1. Policies for the prevention of psychosocial risks; 
   2. Actions undertaken to fight negative practices; 
   3. Actions undertaken for the prevention and, when necessary, control of negative practices; 
   4. Complaint mechanisms for practices opposite to a favourable organizational climate and for harassment and violence in the workplace; 
   5. Results regarding the identification and analysis of psychosocial risk factors; 
   6. Possible health issues stemming from exposure to psychosocial risks. 

3. Undertake actions to promote a sense of belonging between the company’s employees. 

B. Workplaces with an employee number ranging from 16 to 50 shall fulfil the obligations stated in section A, as well as: 

1. Carrying out medical examinations and psychological evaluations for the employees who experience harassment and/or violence in the workplace or who have been exposed to psychosocial risk factors.
2. Keeping records on:

1. 1. Results regarding the identification and analysis of psychosocial risk factors; 
   2. Control measures taken;
   3. The names of employees who have gone through medical examinations and whose exposure to psychosocial risk factors, harassment and/or violence in the workplace, or severely traumatic events was verified. 

3. Identifying and analysing psychosocial risk factors that include all workers and take into consideration:

1. 1. Working conditions and environment, concerning dangerous and unsafe or inadequate and unhealthy conditions that demand an additional effort on the employee to adapt to them; 
   2. Workload (the workplace demands that employees works beyond their capacity or establishes contradictory or inconsistent workloads). 
   3. Lack of control over workflow or the employee’s impossibility to make decisions about their work activities; 
   4. Working hours and rotation shifts exceeding the limits established in the Federal Labour Law; 

4. Assessing of whether there is interference in the work-family relationship as a consequence of the constant demand to make use of time usually devoted to personal and family matters to deal with work responsibilities, or when it is necessary for the employee to work outside work hours.

5. Evaluating whether there is negative leadership (established between an employer or his representatives and his employees) or negative relationships (interaction in the workplace that includes not being able to interact with work colleagues to solve work-related issues).

6. Supervising and identifying whether there is violence in the workplace. 

• • Psychological harassment, bullying: actions that harm the psychological stability, personality, dignity, or integrity of the employee. 
  • Harassment: the exercise of power in a relationship of real subordination between the victim and the aggressor in the workplace, which takes place in the form of verbal or Physical behaviour, or both. 
  • Mistreatment: Repeated actions, insults, mockery, humiliation or ridicule exerted by the employer upon the employee in a continuous and persistent way.

In order to identify and analyse psychosocial risk factors and assess the organizational climate, workplaces may use any method including 

1. 1. The application of questionnaires that fulfil all the requirements established in the NOM; 
   2. The way in which the questionnaires shall be applied; 
   3. The criteria used to assess the questionnaires; 
   4. Risk levels, as well as the steps to determine them based on the results obtained from the questionnaires. 

Identification and analysis of psychosocial risk factors and assessment of the organizational climate shall be integrated into the diagnosis of safety and health in the workplace established in the current NOM or those that replace it. 

The result of said identification and analysis shall be recorded in a report.

The result of the identification and analysis of psychosocial risk factors and assessment of the organizational climate shall be made available for consultation by the employees. 

Both the identification and analysis and the assessment shall be carried out at least every two years. 

C. Workplaces with an employee number over 50 shall fulfil the obligations stated in sections A and B, as well as: 

1. Identifying and analysing psychosocial risk factors and assessing the organizational climate according to the following: 

1.1 An evaluation of the organizational environment must include: 

1. Sense of belonging of the company’s employees; 
2. Training for the competent fulfilment of the assigned tasks; 
3. Precise delimitation of the employees’ responsibilities; 
4. Proactive involvement between the employer, his representatives, and employees; 
5. Adequate distribution of workload with regular work days; 
6. Assessment and acknowledgement of performance. 

1.2 Carrying out actions that promote a sense of belonging in the company’s employees. 

The aforementioned activities shall take into consideration the following: 

• With regards to leadership and labor relations, they shall include: i) actions for work-related conflict management, distribution of work hours, establishment of work priorities; ii) guidelines to ban discrimination and promote equity and respect; iii) mechanisms to promote communication between supervisors or managers and employees; iv) establishment and dissemination of clear instructions among employees to address problems that prevent or limit their activities; and (v) training and raising awareness among directives, supervisors, and managers with regards to psychosocial risk factors prevention and to the promotion of positive work environments.
• With regards to workloads, they shall include: i) reviewing and monitoring that workload distribution is equitable; ii) work-planning considering the productive process; iii) manuals or procedures that clearly outline tasks and responsibilities.
• Workflow control shall include: i) activities to engage employees in decision-making concerning the distribution of their work; ii) activities to agree on and improve the employees’ and employer’s degree of freedom and control over their work; iii) meetings to address opportunity areas for improvement.
• With regards to social support, they shall include activities that allow: i) establishing relationships between employees, supervisors, managers, and employers so that they can support each other; ii) carrying out regular meetings as a follow-up for the activities established for social support; iii) promoting mutual help and knowledge exchange between employees; iv) contributing to the promotion of cultural and sports activities among their employees, by giving them access to all equipment necessary. 
• With regards to work-family balance, they shall include: i) actions to involve employees in defining work hours when work conditions allows it; ii) guidelines to establish measures and limits to avoid the extension of working hours over the established time; iii) support for employees in case of family emergencies; and iv) promotion of family integration activities at work.
• Concerning acknowledgement in the workplace, they shall include mechanism that allow: i) recognition of the employees’ outstanding performance; ii) dissemination of the achievements of outstanding employees; and iii) communicating to the employee what his possibilities for development are.
• In order to prevent violence in the workplace they shall: i) disseminate information to raise awareness about violence in the workplace among employees, executives, managers, and supervisors; ii) establishing procedures to deal with and follow up on solving problems related to violence in the workplace and training those responsible of implementing them;  iii) writing a report on how violence in the workplace must be reported.
• With regards to the information provided to employees: i) the employer, supervisor or immediate superior shall keep immediate and constant communication with the employees about any issues that prevent or delay the development of their work; ii) any changes in the company or on the working conditions shall be notified to the employees; iii) employees must be able to give their opinion about problem-solving or improving working conditions in order to enhance their performance.
• With regards to training provided to employees they shall: i) analyze the relation between training and task assignment; ii) giving employees the opportunity to point at their training requirements based on their activities; and iii) identifying training requirements at least every two years and integrating the results in the training program. 

Workplaces whose results in the aforementioned evaluation, in accordance with the criteria established by the chosen method, deem it necessary to develop control strategies shall implement them by means of a Program that shall include: 

1. Work areas and/or employees engaged in the program; 
2. Kinds of actions and control measures to be adopted; 
3. Scheduled implementation dates; 
4. Monitoring of progress in the implementation of the program; 
5. Subsequent evaluation after the implementation of control measures, as applicable; 
6. Person in charge of its implementation.

Companies will have the option of hiring an certified and approved Verification Unit, which will issue a report that will be valid for two years provided the conditions remain the same.

On that basis, it will be necessary to have a questionnaire available for the evaluation of the employees’ previous disorders, in order to fulfil the requirements of the NOM addressed herein.

In addition, it is necessary to have a specialized area in the workplace so that employees can inform, as applicable, if they are victims of sexual harassment and/or harassment in the workplace by anyone inside the workplace, whichever their hierarchy, with no risk of retaliation for the complainant employee.