Labor specialists agreed that workers’ health needs to be protected and that it is important to test for the new coronavirus; nevertheless, the obligation for this should fall upon the government.
Each entity within the country will determine the general rules under which companies must apply their security protocols once they resume their activities; nevertheless, it is not proper to transfer the responsibility of conducting tests to companies with more than 30 workers, labor lawyers contended.
In accordance with the Guidelines for the implementation of the gradual plan toward the new normality in Mexico City, natural persons or legal entities who head and are responsible for the performance of the activities that are being carried out in line with the color of the Epidemiological Traffic Light, whose workforce includes 30 persons or more must conduct, at their own expense, Covid-19 detection tests on a minimum of 5% of their total workforce, either individually or in groups.
Óscar de la Vega, partner of the D&M Firm, stated that “it is indisputable that workers health needs to be protected; it is important to conduct these tests, although the obligation for this should fall upon the government. Companies must establish protocols, since the Labor department is reviewing them, in an honest manner, and companies must transfer this obligation, in principle, to the IMSS [Mexican Social Security Institute], given that it is a general disease and not an occupational hazard.”
Meanwhile, Alejandro Avilés Gómez, labor specialist, pointed out that non-compliance with the guideline by the employers, “will lead to labor inspection making verification and inspection visits with the objective of corroborating compliance with labor standards, causing employers to be fined, in principle, and it may even lead to the closure of the workplace,”
Testing every two weeks
Among the details published by the Mexico City Government, we find that those which present favorable conditions to maintain a healthy distance of 1.5 meters between their employees and between the users of their services must conduct tests on their workers every two weeks. Without prejudice to their being able to conduct them more often.
In the event that the worker refuses to adopt the preventive measures or follow the specified procedures to avoid accidents or illnesses, he will give rise to grounds for rescission of his individual employment contract, added Avilés Gómez.
De la Vega, for his part, stated that some aspects of the gradual plan guidelines must be reviewed in detail, “just as it is written, it creates a series of confusions, it does not define whether it refers to the totality of workers or the totality of the payroll; the wording is unclear.”
Additionally, the guidelines themselves establish that “workers who present symptoms compatible with those of Covid-19 or who have tested positive for the disease through the tests conducted cannot be dismissed”, which does not define who will bear the cost. “In countries like Argentina the worker is not dismissed, largely because the government covers the payment of the wages; this provision does not exist in Mexico”, concludes the labor lawyer.
Note published in Factor Capital Humano, Leyes y Gobierno [Laws and Government] section by Pilar Martínez