On the evening edition of the March 24, 2020, Diario Oficial de la Federación (Official Journal of the Federation), the government issued the RESOLUTION in which preventive measures are established to be implemented in order to mitigate and control the health effects of the SARS-CoV2 Virus (COVID-19) (herein after the “Resolution”).
Section Second of the Resolution establishes:
- Avoid the assistance on workplaces and other places, of elder population of over 65 years old, as well of people with high-risk to develop the disease (pregnant women or on the lactation period, disabled, people with chronic diseases, among others). This people will receive a full paid salary leave, therefore shall be entitled of the full payment of their wages and benefits.
- Suspend all school activities, applicable to any level.
- Temporarily suspend, up to April 19, 2020, activities of any industry that involves physical attendance, transit or movement of people.
Public health facilities as well as social and private, shall apply programs that assure operations for essential functions related with mitigation and risk control of diseases provided by COVID-19.
On private sector is allowed that companies, business, commercial establishments and any other related, that could be useful to face the contingency, shall continue with their labor activities. Without limitation on the following list, labor activities shall continue on hospitals, medical clinics, pharmacies, laboratories, medical services, financial services, telecom, media, hotel services and restaurants, gasoline stations, public markets, supermarkets, miscellaneous, transport services and gas dealers, as long as the activities are not develop in a closed and crowded place.
Labor relationships will remain and as well as individual labor agreements, collective bargaining agreements or union contract for an industry, during the period established by the Resolution, in accordance with the Federal Labor Law.
- Suspend massive events with over 100 people.
- Fulfill basic hygiene measures.
- Other applicable provisions that the Ministry of Health shall issue.
The Resolution is enforceable from the same day of its publication. Also, on the Official Journal of the Federation, the President of Mexico issued the Decree in which sanctions the Resolution, therefore the provisions of the General Health Act are fulfilled.
Unfortunately, the Resolution is poorly written and originates relevant questions to determine follow up actions, therefore, the preliminary opinion of this Law firm is as follows:
- Elder people and people with high-risk to develop the disease, shall avoid the attendance to the workplace and will continue to receive full salary and benefits. Is important to consider that his point might be considered unconstitutional, since has no legal foundation.
- Since the transit and movement of people must be avoided, the possibility that employees can access to the workplaces, is reduced.
- Companies that do not develop needed activities to face the sanitary contingency, shall suspend labor activities up until April 19, 2020.
- Penultimate paragraph of subsection c) of section Second of the Resolution establishes that labor relationships shall be maintained, a first interpretation lead us that it only applies that labor relationships must not be terminated; however, regarding the temporary suspension of the labor relationships established on the Federal Labor Law, we consider that there are enough foundations to apply Sections 42 Bis and 427 subsection VII, depending on each case, that means that temporary suspensions of the labor relationship is applicable, and payment of the severance of a minimum wage for each day of the contingency up to thirty days. However, employers can reach an agreement with employees and/or the Union a higher severance than the one established on the Law.
Partners and lawyers of De la Vega & Martinez Rojas, S.C., are at your services for any doubt or comment related to this document and/or the Resolution.
De la Vega & Martínez Rojas, S.C.