Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
As of March 11, 2020, at least 10 countries in Latin America have confirmed cases of the novel coronavirus (COVID-19), with Mexico reporting at least seven patients. Given COVID-19’s rapid spread and implications, employers are confronting difficult questions regarding how to handle safety and health rules, travel restrictions, privacy of employees’ health information, compensation, and other employment issues.
The following Frequently Asked Questions (FAQs) are designed to address some of the more common questions that employers with operations in Mexico currently face. Employers are also encouraged to consult relevant guidance and FAQs put forth by the World Health Organization (WHO) and the Mexican government.
1. Should an employer restrict travel to all “affected areas” where there have been confirmed cases of COVID-19 infections, as reported by the World Health Organization (WHO)?
An employer may restrict business travel for business reasons and to protect the health of employees in the workplace. Neither the Ministry of Health nor the Ministry of Foreign Relations has issued formal travel restrictions. They recommend, however, postponing travel to China, Hong Kong, South Korea, Japan, Italy, Iran and Singapore. Employers should consult the Ministry of Health webpage for updated information.
2. What should an employer do if an employee shares that they plan to travel to an affected area?
While action is not mandatory, employers should restrict non-essential travel to the countries that have been designated as “high risk.” The employer cannot restrict personal travel, but can deny employees’ vacation requests. Restrictions on employees upon their return to Mexico should be analyzed on a case-by-case basis.
3. How should an employer handle employees who have family members who have traveled to affected areas?
Employers may ask employees to report whether they or anyone in their household or with whom they have close contact have traveled to high-risk areas or been diagnosed with COVID-19, to determine if an exposure has occurred, which can pose a direct threat to the health and safety of the workforce. The Ministry of Health advises that individuals who are developing symptoms of infection seek immediate medical attention.
4. Can we prevent employees from traveling to affected areas for personal reasons?
See answer to Question #2.
5. Can employers take the temperature of employees who are coming to work?
The Federal Labor Law allows employers to implement mandatory testing of company employees if such examinations are set forth in the company’s internal labor rules, policies or employment agreements. If those conditions are met, employers can take employees’ temperature, with the caveat that employers should make sure that the privacy notice provided to employees covers employees’ health information.
6. Are there any rules on what employers are allowed to do concerning subjecting employees to medical examinations or health-related tests that would apply to an emergency situation involving a communicable illness such as COVID-19?
See answer to Question #5.
SAFETY & HEALTH RULES
7. Are non-healthcare employees required to wear respirators or other personal protective equipment?
Not for purposes of protecting employees from a communicable illness such as the COVID-19 virus.
8. Can an employer with a public-facing business prevent employees from wearing a surgical mask or respirator?
9. What if an employee requests to wear some type of mask as an accommodation?
While the Federal Labor Law does not regulate accommodations, an employer should engage in discussions with the employee to determine the reason for the request. If it relates to a medical condition, the employer should avoid making assumptions and, instead, seek the opinion of a health care provider to determine the best approach, including the options or alternatives to protect vulnerable individuals in the most efficient manner.
10. For employers that have events for large gatherings scheduled, should they cancel them?
The Ministry of Health has not declared a sanitary emergency, so there is no legal requirement to cancel events. An employer can, however, decide whether cancelling an event is convenient for their business and for the safety and health of its employees.
11. Has your country’s government issued travel advisories? (If so, please summarize the guidance and provide a link to the government’s website (if applicable)).
To date, Mexico’s government has not issued official guidance. The Ministry of Health and the Ministry of Foreign Relations are advising the country to avoid non-essential trips and to undertake preventative measures.
12. According to your government’s health department, what are the steps that employees should follow to notify the authorities that they suspect or are confirmed to have a COVID-19 infection?
Employees who suspect they are infected must stay home and call the Ministry of Health’s COVID-19 information hotline at 800-0044-800, to receive specific instruction on how to obtain specialized medical attention.
13. Can an employer require employees to self-report having a COVID-19 infection?
Yes, employees have the obligation to inform the employer if they have contracted any infectious illness.
14. If one of our employees is quarantined, what information can we share with our employees? Who can we share it with?
While one’s health condition is considered sensitive information under Mexico’s Data Privacy Law, the employer is obliged to notify employees if they have been exposed to a contagious illness. The employer should not disclose the identity of the infected employee.
15. What privacy concerns do we need to be aware of when we are asking for the health information of our employees in order to evaluate whether they need to be quarantined?
While employees’ health data is sensitive information under Mexico’s Data Privacy Law, employees are required to notify the employer if they have contracted any contagious disease. Therefore, the employer may ask employees if they are experiencing COVID-19 symptoms such as a fever, cough or sneezing, headaches, tiredness and shortness of breath. Federal law requires the employer to handle the employee’s response as a confidential medical record. To help mitigate risk, employers should maintain the information in a separate, confidential medical file and limit access to those with a business need to know and dispose of the information as soon as the same is no longer required for the purpose for which it was collected.
As this is a fluid and rapidly changing situation, please keep in mind that different or additional facts may warrant re-assessment of policies and practices so they can serve the best interest of employees, employers and the community at large. Accordingly, employers should consult with their employment counsel to keep updated on any new legislation or related legal development.