Legal aspects of the Covid-19 crisis in Mexico

The situation with COVID-19, the disease caused by the coronavirus, is still developing, but there are some key issues that employers should be aware of. Below you will find our guidelines for Mexico with the following questions answered. Since the situation is rapidly evolving, check with us for the latest position.

Yes. On 20 March 2020, the Ministry of Health and the Ministry of Labour and Social Security published “Action Guidelines to Apply in Work Establishments due to COVID-19” (Guía de Acción para los Centros de Trabajo ante el COVID-19). The guidelines contain sanitary recommendations to prevent the spread of COVID-19. Some of the most relevant measures include: 

• Application of a sanitary safety filter in order to verify the health of employees before entering the workplace. 
• Asking employees who have respiratory diseases to return home and instruct them to get medical attention. 
• Restrict any employee who is sick from entering the workplace. 
• Organise working schedules to avoid too many people working at the same time. 
• Temporarily suspend non-essential activities. 
• Encourage employees able to work from home to do so.  
• Ask any employee who is categorised as a high-risk patient to stay home, including: (i) people with heart, pulmonary, kidney or liver conditions, (ii) those who are obese or overweight, (iii) people over 60 years of age; and (iv) pregnant women. 

Additionally, on 31 March 2020 the Ministry of Health published a resolution with extraordinary measures to handle the sanitary emergency. The extraordinary measures include: 

• Suspension of non-essential activities from 30 March to 31 May 2020. 
• Only companies with essential activities will continue operating, such as medical or pharmaceutical-related companies, all companies related to the distribution of water, gas, fuel, etc., companies in the food industry, courier services, transportation services, nursing services, private security, and others. Similarly, the federal government has instructed that all cement, glass and steel companies producing raw material for “priority and strategic projects” such as Tran Maya, will continue operations.
• Companies with essential activities will not allow gatherings of more than 50 people and will apply the recommendations of the “Action Guidelines to Apply in the Work Establishments due to COVID-19”.

Pursuant to Article 47, paragraph XII of Mexican Labour Law, if an employee refuses to follow these safety measures, or any other preventive measure, the employer has the right to terminate the employment relationship with cause and without any responsibility. 

Yes. According to Mexican Labour Law, the employee has the obligation to notify the employer if he suffers from a contagious disease and must take health tests in order to verify it.

(a)    If the employee shows symptoms related to COVID 19.

If the employee is absent because he is showing symptoms, then the employee must report to the Mexican Social Security Institute (“IMSS”) in order to obtain a medical diagnosis. The employee must deliver a medical slip issued by the IMSS to validate an absence. In this case, the employer cannot reduce or refuse to pay the employee's salary since the absence will be justified by the IMSS.
If the employee does not have COVID-19, but is at risk of infection, the IMSS will issue the medical slip in order to validate an absence.

(b)    If the employee has COVID-19.

If the employee has COVID-19, pursuant to Article 42 of Mexican Labour Law, the employment relationship will be suspended temporarily.

To obtain a medical slip and justification for an absence, the employee will report to the IMSS in order to obtain a diagnosis. Due to the current situation, the IMSS has authorised employees showing symptoms to complete an online questionnaire to obtain a diagnosis, and if applicable a medical slip.  
After the employee obtains his medical slip, according to Social Security Law, the IMSS will pay an illness allowance to the employee. This benefit will be paid after the employee’s fourth day of incapacity due to illness.

Yes. The employee has the right to wear a face mask in the workplace. 

Yes. If the employer declares that as a safety measure, the employee will avoid travelling to high-risk areas and the employee refuses to follow this safety measure, according to Mexican Labour Law, the employer has the right to terminate the employment relationship with cause and without any responsibility for the latter. Not following safety measures, even in the normal course of business, is considered a termination cause under Mexican law.

Yes. Since the general rule is that the employee has the right to choose when to take their vacations, then the employee can cancel their vacations. However, in some cases, companies are negotiating with employees to take the current emergency period as a vacation period. In any case, the recommendation is that all negotiated conditions are agreed upon mutually between employer and employee and are recorded in writing.

In a strict legal sense, no. Given that neither the Ministry of Health nor the Ministry of Foreign Affairs or other competent authorities in Mexico has issued formal travel restrictions, an employee cannot refuse to travel if travel is included in their employment contract. 

It is important to take into consideration that even though Mexican borders are still open, some countries have closed theirs and this situation may represent an obstacle to travel.

If the employee refuses to travel, according to the Mexican Labour Law, this could be considered work disobedience, and the employer has the right to terminate the employment relationship without any responsibility to the employer. However, we would not recommend that employers use this dismissal cause since labour authorities may apply new extraordinary criteria in response to the coronavirus situation and Mexican authorities have recommended that employees stay home if they are not performing essential activities. 

According to the Mexican General Health Law (Ley General de Salud), in the event of a severe epidemic or any other sanitary situation that places Mexico at risk, the Executive Branch, through the President, has the power to issue a declaration of sanitary contingency (the “Sanitary Contingency”). 

(a)    If a Sanitary Contingency has not been declared. 

In a strict legal sense, if the Executive Branch has not declared a Sanitary Contingency, then the employer is obliged to fulfill all its regular employment obligations, such as full payment of salaries and social security contributions.

Some alternatives can be negotiated directly with employees, such as reducing salaries during the health contingency. In any case, all negotiated conditions should be agreed upon mutually between employer and employee and recorded in writing.

It is highly recommended that all settlements or agreements with an employee be drafted as an amendment to the Employment Agreement, including all the terms and conditions between the employee and the employer, always making reference to the extraordinary circumstances that are currently taking place.

(b)    If a Sanitary Contingency is declared. 

According to Mexican Labour Law, if a Sanitary Contingency has been declared, then the employment relationship is suspended temporarily without the need for any authorisation or approval from labour authorities. This means that employees will stop providing their services and will have the right to receive compensation from the employer equivalent to the minimum wage in Mexico (approx. MXN 120) for each day that the Sanitary Contingency lasts, to a maximum of one month. If the Sanitary Contingency lasts more than one month, then the employer has no obligation to keep paying compensation to employees.

Once the conclusion of the Sanitary Contingency has been declared by the Executive Branch, the employee has the obligation to return to their duties and the employment relationship will continue under normal conditions. 

As of this date, the Executive Branch has not declared a Sanitary Contingency and thus, employers cannot legally apply it.

(a)    Illness.

Please refer to Question 3 above. 

(b)    Quarantine.

If the employer decides to close the workplace as a safety measure, the employee has the right to receive his full wage. Additionally, one of the recommendations of Mexican authorities is to encourage employers to allow employees able to work from home to do so.

Yes. If the company is not considered a company performing essential activities, then the employer, as a safety measure, can send its employees home and have them work from there. If this occurs, the employer will pay the employee a full wage and the employment relationship will continue.  

(a)    Temporary Closure.

If the company must close due to the coronavirus, the legal consequences will depend on whether a Sanitary Contingency has been declared. For details see Question 8 above.

(b)    Permanent Closure.

According to Mexican Business Law, if an employer decides to permanently close a company,  dissolution and liquidation of the company (or the bankruptcy process) will proceed. In this case, all outstanding balances must be settled and paid. Such payments must include payment of employee severance packages caused by the termination. 

As a general rule, the employer is obligated to pay normal wages to all employees unless a Sanitary Contingency is declared (see Question 8). However, if the employee due to the nature of the activities that he performs (i.e. essential activities) must report to the workplace and fails to do so, the employer has the right to terminate the employment relationship without any responsibility for the employer. The general termination rule will apply: three absences without justification during a 30-day period. 

No formal announcements have been made regarding absence from work due to childcare. In such circumstances, we would recommend that employees discuss their specific situations with employers in order to reach a workable agreement.

First of all, if the employer is able to prove that the employee was infected because he failed to comply with the company's sanitary measures, then pursuant to Article 47 paragraph XII of Mexican Labour Law, the employer has the right to terminate the employment relationship without any responsibility to the employer and the employee will only be entitled to receive pro rata statutory benefits for the termination. 

However, as it will be difficult to impossible to prove negligence from the employee, the general rule for infected patients will apply. The employee will have to obtain sick leave from the IMSS, which will pay an illness allowance for the employee. 

(a)    If the employee performs essential activities.

If the employee or his company performs essential activities, then the employee has the obligation to attend work. According to Mexican Labour Law, if the employee is absent from work for three occasions during a 30-day period without a medical justification, the employer has the right to terminate the employment relationship without any responsibility to the employer. 

(b)    If the employee does not perform essential activities.

Taking into consideration that federal and local governments issued certain sanitary “measures” that include the suspension of non-essential activities (see Question 1), if the employee does not perform essential activities, employees have an option to work from home in order to avoid infection, and it is unlikely that the employer can argue that their absence represents a just cause for dismissal.

Yes. According to recommendations by the Ministry of Health and Ministry of Labour and Social Security, employers, as a safety measure, can order employees able to work from home to do so. The employer will be responsible for providing the necessary tools so that employees can work from home.