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In order to be able to answer such question it is necessary that we keep in mind what is an Official Mexican Standard, according to what is established in the Quality Infrastructure Law, published in the Official Gazette of the Federation on July 1, 2020, in its article 4 section XVI, defines it as the technical regulation of mandatory observance issued by the competent Standardization Authorities whose essential purpose is the promotion of quality for economic development and the protection of the legitimate objectives of public interest foreseen in this ordinance, through the establishment of rules, denomination, specifications or characteristics applicable to a good, product, process or service, as well as those related to terminology, marking or labeling and information. Mexican Official Standards will be considered as Technical Regulations or Sanitary or Phytosanitary Measures, according to the corresponding definitions provided in the international treaties to which the Mexican State is a part.

Employers must comply with several obligations, not only those related to the labor rights of workers, such as contracts, working hours, salaries, Christmas bonus, vacations and other benefits contemplated in the Federal Labor Law, but also, as established in article 123, section A, subsection XV of the Mexican Constitution, the employer is obliged to observe, in accordance with the nature of his business, the legal precepts on hygiene and safety in the facilities of his establishment, and to adopt adequate measures to prevent accidents in the use of machines, instruments and work materials, as well as to organize the latter in such a way that it results in the greatest guarantee for the health and life of the workers, and of the product of conception, in the case of pregnant women. The laws will contain, to this effect, the appropriate sanctions in each case. Therefore, the Mexican Official Standards (NOM’s) are mandatory, and their application may vary depending on the activities and processes carried out in the workplace. It should be noted that we currently have 44 NOM’s, which are classified in five blocks:

1. Safety Standards.
2. Health Standards.
3. Organizational Standards.
4. Specific Standards.
5. Product Standards.

As mentioned above, the first three blocks apply generally to all workplaces, while the fourth and fifth blocks apply only to specific industries, activities and processes.

The Ministry of Labor and Social Welfare (STPS) is in charge of overseeing compliance with the Mexican Official Standards (NOM’s), through the Labor Inspection Area, making visits which can be:

Ordinary:

• Initial, as its name implies, are those that are made for the first time to the work centers.
• Periodic, they are scheduled according to previous evaluations, as well as to the line of business, branch or nature of the activities carried out within the work center.
• Verification, they are carried out in order to verify compliance with the measures indicated.

Extraordinary:

• Complaints from workers, due to non-compliance with labor or occupational safety standards in the Work Center.
• Requests from agencies; by the Federal Labor Delegation for issues of local competence that correspond to the Entity, and from SAT for issues of OCT determinations.
• When there is an imminent danger or risk to workers.
• When there are possible violations to the labor legislation.
• When the Ministry of Labor and Social Welfare becomes aware through any channel of possible non-compliance with labor regulations.
• When there is knowledge of possible accidents occurring in the workplace.

Pursuant to the provisions of Article 132, Section XXIV of the Federal Labor Law, it is the employer’s obligation to allow the inspection and surveillance that the labor authorities carry out in its establishment to ascertain compliance with labor standards and to provide them with the reports that are indispensable for this purpose, when requested. The employers may require the inspectors or commissioners to show their credentials and give them any instructions they may have.

Likewise, in the event of non-compliance by the employer, the Federal Labor Law in Article 994, Section V, mentions the fine to which the employer will be liable, being the equivalent of 250 to 5,000 UMAs, to the employer who does not observe in the installation of its establishments the safety and hygiene standards or the measures established by law to prevent occupational hazards.

Likewise, Article 1004-A establishes the penalty for employers who do not allow the inspection and surveillance that the labor authorities carry out in their establishments, a fine of 250 to 5,000 UMAs will be applied.

The measurement and updating unit (UMA) is the economic reference in Mexican pesos to determine the amount of the payment of the obligations and assumptions foreseen in the federal laws, the laws of the federal entities, as well as in the legal provisions that emanate from all of the above.

Value in Mexican pesos of the unit of measurement and updating (UMA)= $ 89.62

As mentioned in the preceding paragraphs, in case of non-compliance with the Law, the employer could be subject to a fine of $22,405.00 (twenty-two thousand four hundred and five pesos 00/100 pesos) to $448,100.00 (four hundred and forty-eight thousand one hundred pesos 00/100 pesos).

Failure to comply with the NOM’s may result not only in fines of thousands of Mexican pesos, but also in closures and withdrawal of operating permits, in addition to the sanctions that may be imposed by other authorities.

During the first 10 months of the year (2021), the delegation of the Ministry of Labor and Social Welfare (STPS) in Querétaro has imposed fines of 17 million Mexican pesos in 110 resolutions to various companies. The highest economic sanctions reached 2 million 200,000 Mexican pesos for non-compliance with the fire prevention standard, the standard for pressure vessels, the standard for work at heights and the lack of studies on lighting and risk analysis.