Workplace activities suspended in Mexico City after declaration of the competent health authority
On March 23, 2020, the Agreement dated March 19, 2020 was published in the Official Journal of the Federation, by which the General Health Council recognized the SARS-CoV2 virus (COVID-19) disease epidemic in Mexico as a serious disease of priority attention, and "sanctions the preparation measures, prevention and control of the SARS-CoV2 virus disease epidemic, COVID-19, designed, coordinated, and supervised by the Ministry of Health and implemented by the Federal Public Administration agencies and entities, the Legislative and Judicial Powers, the National Health System institutions, the governments of the Federal Entities...”
The General Health Council also expressly recognized the SARS-CoV2 virus disease epidemic, COVID-19 in Mexico, as a serious disease of priority attention.
This agreement of the General Health Council determines that the Ministry of Health will establish the necessary measures to prevent and control the epidemic, and expressly recognizes the governments of the states as health authorities for the corresponding legal purposes. In fact, according to Article 7 of the Health Law in force in Mexico City, the head of the government in this city must be considered as a health authority.
Likewise, on March 23, the Agreement dated March 20, 2020 was published in the Official Gazette of Mexico City, by virtue of which the Head of Government of Mexico City, resolved that:
“FIRST. In light of the health emergency and in order to reduce to the maximum the COVID-19 infection curve among the population of Mexico City, it is decided to temporary suspend activities of the following public and private establishments: any establishments considered to have a direct impact on the neighborhood and vicinity (party halls, movie theaters, theaters, bars, private clubs, casinos, nightclubs, discos, clubs and their variables); low-impact commercial establishments such as public and steam baths, gyms, sports centers, museums, zoos, electronic and/or video game entertainment centers, mechanical and electromechanical, bowling alleys and billiards; as well as the so-called innovation, freedom, art, education and knowledge institutes (PILLARS), child development centers (CENDIS), DIF centers in Mexico City, DIF day centers in Mexico City, centers for attention, care and development of children (CACDIs) and educational centers at all levels in Mexico City. ”
The Agreement provides that the suspension entered into force upon its publication on March 23, and will remain in force until 19 April 2020. This agreement by the Head of Government, in her capacity as health authority of Mexico City, must be interpreted for the purposes of Articles 42 Bis, 427 section VII and 429 section IV of the Federal Labor Law, as a declaration of health contingency, which suspends labor relations. It is important to note that the suspension applies only to the establishments expressly mentioned and only within Mexico City.
This declaration of sanitary contingency takes effect by itself, and therefore, there is no need for approval or authorization by the Board of Conciliation and Arbitration to suspend the obligations to provide services and pay the corresponding salaries.
From our perspective, the suspension is based on the severity of the pandemic and the danger it poses to the health of our country. As a consequence, the employer's obligation to pay its workers an indemnity equivalent to one day of the general minimum wage in force in Mexico City is triggered, which to date amounts to $123.22 pesos, for each day that the suspension lasts, that is, from March 23 to April 19, 2020.
During this suspension, workers must remain registered with the Mexican Social Security Institute and continue to enjoy social security benefits. Even though the suspension takes effect as of the entry into force of the Agreement, we suggest that the corresponding agreements be entered into with the respective employees and/or unions recognizing the nature of the suspension and its effects.
The employers affected by the suspension of work, taking into account the specific circumstances of their company and its workers, may establish during the suspension any form of support for the benefit of their workers.
For the purposes of the other states of the Mexican Republic, a health declaration such as that of the Mexico City government must be reviewed. In the event that there is no formal suspension due to the pandemic and it cannot be considered as a health contingency declaration, the effects on labor relations will be different.