Relative to the pandemic declared by the World Health Organization due to the COVID-19 outbreak, below please find our analysis, impact and the various implications and legal effects that the spread of the so-called Coronavirus has on labor relations in Mexico.
As of today (March 19, 2020), the General Health Council, competent board, has not issued a health emergency alert nor ordered mandatory measures to be observed by employers, which means that there is no legal obligation to comply with or to follow actions related to the pandemic of COVID-19.
This does not mean that measures deemed to be appropriate cannot be implemented in order to avoid potential exposure and to safeguard the physical integrity of all in the workplace, whether they are employees or not.
Preventive measures and actions in the workplace.
Amongst the measures to mitigate the risk of contagion and the spread of the virus, the implementation of a home office program may be considered.
This arrangement is recommended if it is offered to all the employee population and the terms and conditions thereto are clear. For this we recommend to communicate the following:
- (i) it is not a work suspension nor vacation or a rest period;
- (ii) the work schedule shall be considered self-administered, which means that each employee must strictly comply with the agreed upon work hours;
- (iii) there is an obligation to continue to perform the activities with the same intensity and quality and;
- (iv) to remain fully available during the remote work.
We suggest to check if you have a policy in this regard and, if you do not, consider the implementation of one.
If employees are asked to stay away from the workplace without the implementation of the home office arrangement, they will be entitled to full payment of salary and benefits as it should be treated as a paid leave.
Other measures may be explored such as flexible hours, reduced schedules and days off towards vacation entitlement.
These additional measures will largely depend on the employer’s main activity and must be assessed on a case-by-case basis considering the agreed upon terms and conditions of employment of the Collective Bargaining Agreement, if any.
Medical controls and examinations.
Employers may legally require their employees to undergo medical examinations at any time during the employment relationship, which may include but not limited to, submit themselves to temperature controls.
In turn, employees have the legal obligation to undergo these examinations as well as to answer related questionnaires to determine if they may have been exposed to any risk situation such as travel to high-risk areas or had contact with an infected or suspected person of infection.
Refusal to submit to the medical controls can be construed as a ground for termination for cause if there is hard evidence of such refusal. For this, we suggest to draft a statement of facts (acta administrativa) that clearly describes the situation considering circumstances, method, time and place.
For these purposes, it is important to verify that each employee has been issued a privacy notice that details the treatment of the information collected that could be considered sensitive or confidential, such as the results of medical examinations.
It is important to remember that delivery of the privacy notice is a legal obligation charged to all employers in Mexico.
On the other hand, it may also be considered to conduct temperature controls on people who intend to enter the workplace whether they are suppliers, customers, visitors or independent contractors in general. For this, we suggest to have a privacy notice visible at the entrances to make them aware on the treatment and confidentiality of the data collected.
It should also be indicated that the data will not be disclosed and that the sole purpose is to guarantee the safety of all individuals present at the company’s facilities.
Social security matters.
If there is suspicion that any given employee may be ill, they will have to be directed to the company’s doctor if any, or referred to the corresponding clinic of the Mexican Institute of Social Security («IMSS» for its acronym in Spanish) for a health evaluation.
If IMSS does not issue the certificate of disability due to general illness, then the employee must return to work unless the employer decides otherwise with full payment of salary.
In the event an employee is infected with COVID-19, this shall be treated as a general illness as shown in the certificate of disability that must include the length of the disability.
If there is no declaration of emergency or the employee does not have a certified disability by IMSS, the employment relationship will continue without affecting the rights and obligations of the parties.
Schools closure.
The Ministry of Education determined to anticipate a couple of weeks the Easter holiday period, which implies a suspension of classes from March 20 to April 19 of this year.
This does not imply that parents have the right to be absent from their activities or that the employer has the obligation to grant leave with pay, which does not mean that they cannot grant it if they so determine, or to consider the time taken on account of vacations.
Declaration of a sanitary emergency.
Federal Labor Law provides that such a declaration will be considered as grounds for suspension of labor relationships. The legal effect of this is that there will be no obligation for employees to provide services, nor for employers to pay wages.
However, because it is a health emergency, the law itself sets forth that the employer will have the obligation to pay the amount of a daily minimum wage for up to a 30-day period.
This in the understanding that if the emergency lasts more than 30 days, then there will be no obligation to pay salary to employees, notwithstanding that the employer may determine to pay some or all amounts, which will be entirely discretionary.
Once the declaration of emergency is concluded, employment relationships must be resumed under the same terms and conditions as agreed prior to the contingency.
In the event that federal government, through the General Health Council issues the declaration of a health emergency, regardless of whether it implies a suspension of work or not, female pregnant or lactating employees, as well as those under 18 years of age must refrain from going to the workplace without their salary being, benefits and employment rights in general suffer affections.
Regardless of whether a health emergency declaration is determined or not, we suggest to observe the following security measures officially indicated by the Ministry of Health:
- Wash hands frequently with soap and water or use 70% alcohol-based gel.
- When coughing or sneezing, do so into a disposable tissue or with the internal angle of the arm.
- Avoid spitting. If necessary, use a disposable tissue and put it in a plastic bag, tie it and throw it in the trash; then wash your hands.
- Do not touch your face with dirty hands, especially your nose, mouth and eyes.
- Clean and disinfect surfaces and objects of common use in: houses, offices, closed places, transport, meeting centers, etc., as well as ventilate and allow sunlight to enter.
Finally, the development of the spread of COVID-19 and the general conditions related to this issue are constantly changing, so we will issue updates in due course depending on the development of the pandemic and the effects that it may have in the labor and employment environment in our country.
Mr. Jorge G. De Presno Arizpe and Mr. Alvaro González-Schiaffino, lead partner and partner of our labor law practice group, respectively, Mr. Gil Zenteno García and Santiago Villanueva Durán, partner and senior associate of our Social Security practice group, together with the associates of our areas, are available to comment in more detail the contents of this note.
SINCERELY,
Labor Law:
Jorge De Presno
jorgedepresno@basham.com.mx
Álvaro González-Schiaffino
agonzalez@basham.com.mx
Social Security:
Gil Zenteno García
zenteno@basham.com.mx
Santiago Villanueva
svillanueva@basham.com.mx
Mexico City, March 19th, 2020.
