This is how the IMSS will determine whether a COVID-19 contagion is an occupational hazard

These are the criteria and procedures to be used by the IMSS [Mexican Social Security Institute] to determine whether a contagion is an occupational hazard or not.

On January 8 of this year, the Technical Council of the IMSS published in the Official Gazette of the Federation (DOF) a resolution in which it is established that the disease caused by COVID-19 is an occupational hazard, regardless of the worker’s activity.

According to several specialists, this means that the IMSS will increase the premiums charged to companies and workers in 2021. In an interview with Reforma, Bernardo Elizondo Ríos, partner of the Adame y Elizondo Abogados Law Firm, explained that the premiums could increase by up to 50% starting in March.

According to the specialist, this measure would have serious consequences for companies that have had compensations for illness, death or disability deriving from COVID-19. According to several labor lawyers, it is almost impossible to determine where the contagion took place, so it cannot be argued that the hazard is occupational.

In an interview with the same medium, Héctor de la Cruz, a lawyer at the De la Vega & Martínez Rojas Firm, said that the measure is unfair because it creates an obligation for the employer to pay for disabilities without concrete evidence that the disease was contracted at its workplace. Given all of the above, the specialist said that it is probable that several companies will resort to filing amparo proceedings.

How to determine whether it is an occupational hazard

The IMSS published the parameters that will be used to determine each case individually.

In the first place, Article 513 of the Federal Labor Law establishes the following in regard to occupational hazards:

The Department of Labor and Social Welfare will update the tables of occupational diseases and of evaluation of permanent disabilities resulting from occupational hazards; these tables will be published in the Official Gazette of the Federation and will be of general observance throughout the national territory. To this end, said agency will take into consideration the opinion of the National Advisory Commission on Safety and Health at Work, the Department of Health, the Department of the Environment and Natural Resources, as well as that of specialists in the matter.

Section 136 of this article establishes virosis as a risk (hepatitis, enterovirus, rabies, psittacosis, virus pneumonia, infectious mononucleosis, poliomyelitis and others). Therefore, Coronavirus SARS-CoV-2 (COVID-19) can be catalogued as an occupational disease.

Levels of risk

The IMSS determined that there are four separate levels based on exposure during the pandemic. Levels are based on the guidelines established by the Departments of Labor and Health and on the Guidelines on the preparation of workplaces of the United States Department of Labor.

Very high exposure risk jobs are those with high potential for exposure to known or suspected sources of COVID-19 during specific medical procedures, mortuary jobs, or laboratory procedures. Workers in this category include:

• Healthcare workers conducting aerosol-generating procedures on patients known or suspected of carrying COVID-19.
• Healthcare or laboratory personnel.
• Mortuary workers performing autopsies.

High exposure risk jobs are those with high potential for exposure to known or suspected sources of COVID-19. Workers in this category include:

• Healthcare support and assistance personnel exposed to patients known or suspected of carrying COVID-19.
• Medical transportation workers transporting patients known or suspected of carrying COVID-19 in closed vehicles.
• Mortuary workers involved in preparing the bodies of people known or suspected of having carried COVID-19.

Jobs with a medium risk of exposure include those that require frequent contact (of less than 1.8 meters) with people who may be infected, but who are not patients known or suspected of carrying COVID-19.

Low exposure risk jobs are those that do not require contact with people known or suspected to be infected or have frequent close contact with the general public.

Criteria

As explained by Fiscalia, in order for a worker to be considered within a probable occupational disease, he must meet the following requirements:

• • In the performance of his work activities, he has contact with:
    1. A patient or person confirmed to have the virus.
    2. A patient or person that is suspected of carrying the virus.

• Risk levels must also be taken into account.
• There must be a latency period of between 1 and 14 days between contact and the beginning of the clinical picture.

If it is proven that the worker was exposed to the disease due to his activity and the possibility of extra-occupational exposure is eliminated, the case will be considered as an occupational disease.

With information from Fiscalia.

https://www.fiscalia.com/publicaciones/15087