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.
On March 30, 2020, Mexico’s General Health Council declared a sanitary emergency due to the coronavirus (COVID-19) pandemic. On March 31, the Ministry of Health published in the evening edition of the Official Gazette of the Federation an agreement to establish extraordinary actions to deal with the health emergency caused by the COVID-19 virus. Notably, the agreement suspends all non-essential activities from March 30 through April 30, 2020 ("Suspension Period").
The following are considered “essential” entities and therefore may continue to operate:
- Those entities directly necessary to attend to the health emergency, such as activities in the medical, paramedical, administrative and support sectors of the entire National Health System. Also included are those that participate in its services and supply, among which the pharmaceutical, production and distribution sectors stand out. Additional essential entities include those involved in the manufacture of supplies, medical equipment and technologies for health care; those involved in the proper disposal of biological-infectious hazardous waste; as well as cleaning and sanitizing medical units at different levels of care.
- Those entities belonging to the fundamental sectors of the economy such as:
- tax collection;
- distribution and sale of energy;
- gas stations and gas;
- generation and distribution of drinking water;
- food and non-alcoholic beverages industry;
- food markets, supermarkets, self-service stores, groceries and the sale of prepared foods;
- passenger and cargo transportation services;
- agricultural, fishing and livestock production;
- chemical industry;
- cleaning products;
- hardware stores;
- courier services;
- guards performing private security tasks;
- nurseries and children's daycare;
- nursing homes and care centers for the elderly;
- shelters and care centers for women who are victims of violence, and their children;
- telecommunications and the media;
- private emergency services;
- funeral and burial services;
- storage and cold chain services for essential supplies;
- logistics (airports, ports and railways);
- activities that if suspended would unlikely be able to resume; and
- activities necessary for the conservation, maintenance and repair of critical infrastructure that ensure the production and distribution of essential services, namely: (a) drinking water; (b) electric power; (c) gas; (d) petroleum; (e) gasoline; (f) jet fuel; (g) basic sanitation; (h) public transportation; and (i) hospital and medical infrastructure, among others.
In the work centers where these essential activities are carried out, various health measures must be implemented.
The following individuals must stay at home during the Suspension Period:
- staff over 60 years of age;
- pregnant or postpartum women; and
- personnel diagnosed with high blood pressure, diabetes mellitus, chronic heart or lung disease, immunosuppression (acquired or caused), kidney or liver failure, regardless of whether their work activity is considered essential.
At the end of the Suspension Period, guidelines for the staggered return of work activities will be determined.
The federal government, without any legal basis, has called on companies to pay 100% of the salary of workers who do not work during the Suspension Period.
The Federal Labor Law establishes in its articles 427 and 429 that when a suspension of work is declared by the health authority, the employer must pay its workers compensation equivalent to a general minimum wage in force for each day of suspension, without exceeding one month.
The order of sanitary emergency fits precisely in the provisions of these articles; however, in order for companies to bear all the economic cost, the government has indicated that the health emergency is due to unforeseen circumstances (force majeure), in order to try to force companies to pay 100% salary during the Suspension Period.
It is important to mention that the cause of force majeure, according to the Federal Labor Law, must be determined by the Conciliation and Arbitration Board, after a procedure has been exhausted at the employer’s request. At this time, the Conciliation and Arbitration Boards of the entire country are closed and are not accepting requests for a declaration of force majeure to carry out the collective suspension or termination of labor relations.