By: Daniel Gutiérrez
1. What is the Mexican “Consejo de Salubridad General” (Health General Council, “CSG”) in view of the COVID-19 pandemic?
The CSG Council is a special purpose (ad hoc) Constitutional Council that was established this March 24, 2020, to confront the SARS-Co-V2 (COVID-19) epidemic, and it is based in numeral 1 of Section XVI, of Article 73 of the Mexican Federal Constitution. This same article regulates in other Sections what Mexican Congress can legislate at the Federal level.
The CSG Council has been regulated (with slight variations of name) in our Constitution since its establishment in 1917, and it has suffered several amendments over its history to improve the Government response to pandemic events, of which the latest one was the 2009 H1N1 that affected Mexico more than other countries at the time. The Constitution was amended soon after to adjust to this types of threats accordingly.
The CSG Council is considered materially as a “Legislative Council”, whilst Health (or on the ground) enforcement continues to be placed in the hands of the President, the Federal Secretary of Health and the Governors in their respective local jurisdictions. These general rules are compulsory for individuals and companies in Mexico when the health of the citizenry-at-large is in imminent peril in cases like this pandemic COVID-19 situation.
Unlike Constitutional Suspension Rules contained in Article 29 of the Mexican Federal Constitution, the establishment and issuance of CSG rules are not conditioned to:
- A prior authorization by the Mexican Federal Congress, nor of the Permanent Commission of Congress (“Comisión Permanente del Congreso”).
- Nor they are subject to an automatic review of general rules issued by the Mexican Supreme Court (“SCJN”).
These CSG Council General Health Rules only require for their validity, a so-called “sanction”, which is similar in nature to an “enactment” (promulgación) of laws sent by Congress to the President.
In short, we are of the opinion that these rules are validly issued and enforceable under current Mexican laws.
There are many contradictory opinions as to the compulsory nature of one rule contained in section a) of ARTICLE SECOND, and more specifically as a “preventive measure” to be put in practice by public, social and private sectors, where:
“Senior citizens 65 years of age or over, or any other category of susceptible individuals*, which are the ones at risk to develop a grave illness or death that should avoid attendance to workplaces, public spaces or crowded places and at all circumstances should enjoy a “manner” of paid leave-of-absence, and should continue to enjoy their respective salary and all related fringe benefits under the law, or their collective labor agreements (if applicable).”
The confusion seems to stem from the tentative wording being employed due to the use of enjoy “manner” of paid leave. This was an unfortunate application of language. Laws or Regulations should be affirmative, concise and clear always.
Notwithstanding, and in order to correctly apply these rules one should adopt guidelines to make sure that the Employer makes channels available for this category of susceptible workers to approach the HR department with the privacy and respect that the law and best practices provide: the easier task is find the 65 years of age and over employees, more challenging is finding out the younger set to divulge their susceptible chronic conditions that might put them at risk if they attend to their jobs.
In practice, some susceptible employees, even risking their own health, are hesitant to divulge their condition as the upcoming economic recession could affect employment opportunities. Federal labor law provides for respect to privacy of workers. Special efforts must be done by HR Departments to communicate and assure workers that the best policy is to abate risks for everyone by following the guidelines imposed by the Mexican Federal Government.
2. What changed with the March 30th CSG decree labeling it “Sanitary Emergency” due to force majeure?
In short: The contingency extends until April 30th instead of April 15th.
We are of the opinion that CSG is biding its time to implement other measures as this pandemic rolls out in Mexico. In our opinion, it still falls short of the Full-Blown General Health Contingency with work suspension outlined in Article 73 section XVI, subsections 2a., and 3a., of the Mexican Constitution, and it fulfills the specific case of suspension in accordance to Article 427, section VII of the Federal Labor Law, as it does not yet decree a 30-day furlough wherein minimum wage payment could become compulsory in accordance to article 429 section IV.
* “Susceptible” workers are defined as the ones over 65 years of age, or anyone potentially at risk of developing “grave illness or death” due to being handicapped, pregnant or breastfeeding children 5 years or younger, or any other chronic not transmissible illness due to hypertension, obesity, cardiac, metabolic or hepatic insufficiencies, or any other whose illness or medical treatment causes immune suppression.
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The content of this page is not and should not be considered legal advice, the information is for informational purposes only.