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.
The Mexican Institute of Social Security (“IMSS” for “Instituto Mexicano del Seguro Social”) recently provided guidance on the criteria employees need to meet for their COVID-19 infection to be considered as an occupational illness. The criteria provides the elements and requirements that the medical personnel must consider, as discussed further below.
Employee’s Exposure Due to Work Performed
The employee must be able to demonstrate that the infection occurred during work or due to the type of work performed, or that their job position inherently poses a higher risk of infection.
Fitting in this category are employees within the healthcare industry, whether in the public or private sectors, including those working in diagnostic and pathology services, cleaning services, and other job positions exposing employees to patients.
Employees performing essential work activities, such as personnel of supermarkets, pharmacies, cleaning and other essential operations, also fit within this category.
Job Position Inherently Carries Risk Exposure
As noted above, an employee can establish that a COVID-19 diagnosed is work-related by showing that the job position inherently carries a risk of infection to communicable diseases. The risk may be rated by “very high risk,” “high risk,” “medium risk,” or “low risk.”
Employees in “very high risk” jobs include healthcare employees that directly provide medical care to suspected or known COVID-19 patients (such as healthcare or laboratory personnel, medical emergency transport, or morgue employees, etc.).
The “high risk” threshold may be met by healthcare employees that do not directly provide medical care to suspected or known COVID-19 patients, such as employees within the healthcare industry dealing with the public (e.g., providing customer service), medical transport employees in enclosed vehicles, and mortuary (funeral home) employees.
Employees having a “medium risk” exposure include those working directly with the general public or dealing with contaminated materials or surfaces. This category would include employees of stores, schools, nurseries, pharmacies and public service areas, as well as healthcare employees not assisting coronavirus patients. It would also include employees working without personal protective equipment while providing food and beverages preparation services, public administration and social security services, temporary lodging services, personal services for household and others, and transportation services.
The “low risk” category would apply to personnel who, though not having contact with the general public, nonetheless provides essential services that expose the employees to a greater risk of infection than the general public would experience. “Low risk” employees also have a greater risk of having contact with contaminated materials or surfaces. Such employees include warehouse or store personnel, as well as those providing legal, accounting, administrative or maintenance services.
Susceptibility to Exposure
Regardless of the nature of individual’s job, an employee’s COVID-19 diagnosis might also be considered an occupational illness if they were exposed, while performing their work, to an individual confirmed or suspected of having the infection.
After the analysis is made based on the aforementioned elements, the COVID-19 case must comply with the following requirements in order to be considered an occupational illness:
- The employee must have a confirmed or suspected COVID-19 infection. In other words, the employee either has shown symptoms of a coronavirus infection or has a confirmed diagnosis by a public or private laboratory of the National Laboratory of Public Health Network. Relatedly, asymptomatic employees who have been in contact with coronavirus patients will not qualify until they show symptoms or have been confirmed through a laboratory test.
- The employee must be included in the categories of personnel with occupational exposure listed above.
- There is a dormancy period of 1 to 14 days from the contact or occupational exposure to the onset of clinical symptoms for the employee. As a result, medical personnel must evaluate whether the exposure occurred before the work suspension, for non-essential activities.
- It has to be demonstrated that the employee was exposed during or due to their work to a person with coronavirus and that any non-occupational exposure is minimal compared with the occupational exposure.
Finally, where reasonable doubt exists concerning the exposure, the facts must be viewed in the light most favorable to the employee.