In light of the suspension of work activities due to covid-19, Mexico faces controversy, since actions that adhere to the provisions of the labor regulatory framework on health contingencies are not being taken. This will have severe repercussions both for companies, workers, who will surely lose their jobs, as a consequence of the lack of compliance with the Rule of law, pointed out experts in labor law.
The Department of Health declared Phase 2 of the covid-19 pandemic, which intensified social dispersion policies in order to avoid the spread of the disease.
In regard to labor matters, measures have been adopted, like the suspension of work for people over 65 years of age and other vulnerable groups, as well as the suspension of non-essential activities within companies, together with the suspension of employment relationships with their employees.
“It is clear that measures to prevent and fight the health contingency, a situation that cannot be called by any other name, are being implemented; nevertheless the labor authority contends that the contingency has not been declared, this with the sole purpose of circumventing the legal provisions of the Federal Labor Law, as explained by Oscar De La Vega and Eduardo Arrocha, lawyers at the De La Vega y Martínez Firm.
The Federal Labor Law, in Articles 427 and 429 establishes that in the event of a health contingency, the employer will have the obligation of paying its workers a compensation equivalent to one day of the general minimum wage in force for each day of suspension, for a period not to exceed one month.
These rules were added in the 2012 reform, after the H1N1 Influenza health contingency of 2009, with the objective of preventing the consequences of a suspension arising from a similar health scenario.
“It is contended that the contingency has not been declared, as if the “declaration” were a legal formality required by Law, but this requirement does not exist either in the Constitution or in the General Law on Health. In the absence of a contingency, whether the word is used or not, the measures that have been ordered would have no basis: the suspension of activities in companies, the confinement of people to their homes, the limitation of the free transit of people, to name some of them”, explained the experts.
The lawyers described this reasoning as illegal, as it has the purpose of making the legislation in regard to this matter unenforceable and “returning things to their former state, before the 2012 reform”, they stated.
For his part, President Andrés Manuel López Obrador, in his morning conference of March 27, stated that “it was unfairly established that, in the event of contingency, workers could be terminated and paid only a month of the minimum wage. Just by lowering their salary to the minimum, they are taking away a third of their income, because the average salary, according to the IMSS [Mexican Social Security Institute] is 12 thousand pesos per month and the minimum wage is of 3 thousand 700, and this, only for one month, therefore, if we adhere to the provisions of the LFT, it is unfair”.
Nevertheless, the experts in labor law concluded that the Presidential Decree stating that wages be paid lacks a legal and constitutional basis, given the presence of a suspension not provided for in the Federal Labor Law.