By: José Díaz and Eumir Quintero
UPDATE (March 25th, 2020): Mexican authorities have oficially declared Phase 2 of Contingency.
As of the date of publication of this article, there are already 203 confirmed cases of COVID-19 (also known as Coronavirus) in Mexico. On March 18, the first case of death resulting from this virus was officially declared. The corresponding authorities have declared Phase 1 of Contingency, which confirms dozens of cases where the virus is identifiable. However, massive and public events have not been restricted (various private investors have made the decision to postpone and/or suspend concerts, fairs, etc.; but this is not yet required).
Health authorities in Mexico have mentioned that by the end of March we could enter Phase 2 of the Contingency, which implies community dispersion. This could affect millions of people, specifically in the labor field; that is why, below, we show you 6 key points or questions in the workplace that may arise with the current situation of the pandemic:
1. What happens to my job?
There are two types of suspensions of the employment relationship:
- Absolute suspension: Both parties (employer and worker) fail to fulfill their main obligations, that is, the service is not provided and the service is not paid (example: arrest of the worker by authority), and
- Relative suspension: The service is not provided and the salary must be paid (example: maternity).
For the moment, the competent authority, which in this case is the Ministry of Health in accordance with article 73 fraction XVI of our Constitution, has not declared a Health Contingency in its maximum phase, so the obligation of workers to attend to provide their services is still in force.
2. Can I stop going to work?
The obligation to go to work continues until the health authority in Mexico issues a “Declaration of Sanitary Contingency” with suspension of work. If it has not been declared, the employer is not obliged to justify the absences, much less to pay wages.
It is worth mentioning that it is the decision of each Employer (not obligation) not to justify absences, since measures can be taken within the company to avoid the spread and make decisions in specific cases, such as the contagion of a worker’s family member, etc.
The workers will have to attend work until the authorities declare the suspension mentioned in Article 427 Fracc. VII of the Federal Labor Law:
Article 427: The causes of temporary suspension of employment relationships in a company or establishment are: …
VII. The suspension of work, declared by the competent health authority, in cases of health contingency.Federal Labor Law
So as long as the Declaration of Sanitary Contingency with suspension of work has not been issued, the worker is obliged to report to work and the employer does not need to pay wages to those who do not comply with it.
3. When work is suspended, will they pay me my salary?
In the event that the Health Contingency is declared in its Phase 3, that is, with suspension of work, the provisions of Article 42 Bis and 429 of the Federal Labor Law will be followed:
Article 42 Bis: In the cases in which the competent authorities issue a declaration of health contingency, in accordance with the applicable provisions, which implies the suspension of work, the provisions of article 429, section IV of this Law shall be followed.
Article 429: In the cases indicated in article 427, the following rules shall be observed: …
… IV. In the case of section VII, the employer will not require the approval or authorization of the Court and will be obliged to pay their workers compensation equivalent to one day of the current general minimum wage, for each day the suspension lasts, without exceeding one month.Federal Labor Law
This means that, as soon as the aforementioned Contingency Declaration is issued, the Employer will be obliged to pay his workers, even when they are not going to work, the amount equivalent to a general minimum wage in force for each day that the contingency lasts. This situation by law cannot remain more than a month. (The current minimum wage is $185.56 pesos a day on the northern border of Mexico.)
4. Temporary remote work or “home office”
As mentioned above, the Employers (without being obliged by Law) may take preventive measures that may be mandatory for their workers and the company itself. In a specific case, if the work performed is at the desk, there is an option that the employer allows and encourages the so-called “work at home” or “home office”.
In these cases, if the Employer allows this type of work and the worker accepts it, all labor rights will remain the same, such as the payment of wages and benefits. It must be emphasized and be very careful, that if the so called Declaratory Contingency Health is issued (with work stoppage), workers who work from home are under no obligation to labor, but if they desire to work, they should receive their normal salary, not that of the contingency.
5. Can I refuse to work?
This point is critical since, by law, a worker cannot refuse to work or carry out the instructions of his employers, since this would fall into one of the alleged grounds for termination of the employment relationship attributable to the worker; that is, the employer could end the employment relationship without compensation.
However, with the situation that is being experienced, it is important to have effective communication between workers and employer, to decide the best measures for all subjects in the workplace, such as: home office, cancellation of business trips, increase the cleaning and maintenance of workplaces, issue recommendations for good hygiene practices, keep abreast of the recommendations, warnings and declarations of the health authorities in the country, as well as note that employers can use medical examinations and controls to avoid contagion.
6. Is it mandatory to suspend work in all areas?
The agreement that may be issued by the competent authority (Health Secretary), by which the work stoppage in the Public Federal Administration and the productive sector throughout the country is ordered during the designated period, would be mandatory for dependencies and entities of the Federal Government and for the private sector throughout the country, except for those tasks that are essential to face, in a timely and effective manner, the health emergency situation in the country.
On similar occasions, the following stand out as exceptions to the suspension of work:
- General means of communication: public transport, federal motor transport, ports, airports, highways, highways, telecommunications, electronic means of communication and information.
- Hospitals, clinics, pharmacies, laboratories, medical services and their suppliers.
- Basic financial services: banks, ATMs and other financial services.
- Hotels and restaurants, provided that the latter do not correspond to closed spaces with crowds.
- Gas stations, gas distribution and other fuels.
- Markets, supermarkets, grocery stores and food outlets in general.
- Supply of electrical energy, water, garbage collection and cleaning services.
- Public security, customs and emergency services.
Regarding labor relations, those that correspond to dependencies, entities or companies that would continue their activities and operations because they are exempt from the suspension of work, would be maintained and applied according to the individual contract, collective work contracts, contracts-law or general working conditions, as applicable.
It is an unprecedented situation, so we recommend that you pay attention to the recommendations of the health authorities and those communicated by official sources. If you have or manage a company, do not hesitate to contact us to answer any questions related to this and other labor issues.
The content of this page is not and should not be considered legal advice, the information is for informational purposes only.