The World Health Organization (“WHO”) has recently declared the novel coronavirus (“Covid-19”) a pandemic, which will cause governments across the globe to take drastic and, in some cases, severe actions to curb the spread of the infection. Given such events, it is important to identify employment obligations in Mexico pursuant to applicable law and standards, as well as to create and implement a protocol to prevent the spread of the virus and handle suspicious cases in workplaces.
Provisions established in the Mexican Federal Labor Law (the “MFLL”)What kind of obligations are set forth in the MFLL concerning health emergencies?
- Generally, if authorities declare a health emergency, employers have the obligation to follow guidelines established by health authorities to protect the wellbeing of employees.
- Pursuant to Article 134, paragraph X, of the MFLL, employees have the obligation to take medical exams, following guidelines set forth in Internal Work Rules and other provisions in force at the workplace, to ascertain they do not have a contagious disease.
- Employees who are afflicted with a contagious disease may be placed on leave.
Are there special obligations that apply to specific groups of workers?
- Yes. If the authorities declare a “partial” health emergency that affects the workplace, pregnant and nursing women, as well as employees under the age of 18, must be allowed to take paid leave with all benefits, all paid by the employer. Although the MFLL does not mandate it, a conservative approach during the Covid-19 crisis would be to allow employees over 60 years old and those who have certain pre-existing conditions, to take paid leave if a partial health emergency is declared.
Is there a scenario where employers may be obligated to temporarily shut down a workplace?
- Yes. If the authorities declare a general health emergency ordering that workplaces temporarily shut down, employees shall be placed on leave. Under such circumstances, the MFLL provides that employees must be paid only the minimum wage for up to one month. Shutting down a workplace under such conditions does not require approval from the labor board. Employees must return to work as soon as the general health emergency ends.
Is it possible to place employees on unpaid leave if force majeure or unforeseen events create a shortage of raw material?
- Yes, but the MFLL establishes a special procedure to apply for and obtain approval from the competent labor board. However, agreements entered with unions to either suspend or reduce operations or work hours are more practical and common.
RecommendationsIt is advisable to work with a health expert to create a protocol that establishes measures to confront the Covid-19 crisis at the workplace. The protocol should follow guidelines recommended by the WHO, the Mexican Ministry of Health and other competent authorities. Further, the company’s Joint Health and Safety Committee should lead efforts to implement the protocol. The following are some of the measures that may be included in the protocol:Proactive measures.
- Distribute leaflets or post signs to inform employees of symptoms of which they should be vigilant.
- Inform employees of existing conditions that make certain individuals more vulnerable.
- Promote frequent handwashing and the use of gel sanitizers.
- Install sanitizer dispensers and provide tissue paper.
- Inform as to proper etiquette for coughing and sneezing.
- Include guidelines as to the use of face masks.
- Avoid physical contact (handshakes, hugs, kiss-greetings, etc.).
- Establish rules regarding cleaning and sanitizing workstations, tools and the facilities.
- Update information as it becomes available from reliable sources and warn about false information distributed through the social media.
- If an employee has flu-like symptoms, especially a sore throat, trouble breathing or a fever, the employee should be tested and receive medical attention at the corresponding Social Security clinic.
- If an employee presents mild symptoms and may continue to work, allow the employee to work from home if possible.
- Report potential Covid-19 cases to the Sanitary and Epidemiology Office (Unidad de Inteligencia Epidemiológica y Sanitaria): email@example.com or by phone (55) 5337-1845.
- Avoid international travel, especially to countries most affected by Covid-19.
- If any kind of travel is necessary, require prior approval.
- Monitor employees who have traveled by airplane in recent weeks.
- Identify employees who are more vulnerable: those over 60 years old and employees who have certain pre-existing conditions.
- Identify employees under the age of 18, pregnant or nursing.
- Continually monitor and poll employees.
- Take the temperature of employees before entering the workplace. If an employee refuses, send employee (with pay) to the corresponding Social Security clinic for evaluation.
Lastly, it is important to note that Mexican authorities may declare a health emergency for non-essential activities only. Such a declaration could also be limited to certain regions within the country or issued as a general health emergency. CCN will continue to monitor the Mexican government’s statements, particularly those from the labor authorities, and continue to report on employment and other legal implications that may affect workplaces in Mexico.