What risk mitigation efforts should the prudent employer take before employees return to the workplace?
As a general rule, employers in Mexico have duties relating to the health and safety of their employees. This includes but is not limited to, providing employees with the necessary health and safety equipment and proper related training.
Further, note that certain sectors or activities (such as the food and pharmaceutical industry, and the oil and gas sector) may be subject to additional HSE requirements per official standards (norma oficial Mexicana) or other industry-specific regulation.
As of August 2020, the Mexican government has adopted a stoplight system as part of the broader strategy to manage the ongoing pandemic:
- Red: Maximum risk
- Amber: High risk
- Yellow: Moderate risk
- Green: Low risk
This system is adopted at the local level, as each state dictates the stoplight color that it will be subject to during the following weeks. Each stoplight color in turn provides specific limitations on the activities that are allowed and the measures that are to be followed in each case (including limited capacity for employees and/or customers, and implementing physical barriers and measures such as mandatory facemasks/shields, sanitizing mats or tunnels).
Some states have also issued specific local regulation that employers need to be mindful of. For example, employers in Mexico City with 100 or more active employees in the workplace shall (i) arrange for COVID-19 tests to be performed on 3% of their employees every 15 days; and (ii) submit weekly reports on the number of confirmed and suspected cases.
Depending on the industry and the state where the employer is located, employers may also be required to complete an online certification program.
In light of the foregoing, employers should seek specific advice in preparation for reopening.
Who should be involved in the decisions to return to the workplace?
As a general rule, management, HR and legal should be involved in the discussions and decision. If the employer has entered into a CBA, union representatives should also be involved.
What can the prudent employer do to ensure physical distancing in terms of the work space?
Social distancing and other physical barrier measures will depend on the specifics of the operation per our comments above.
What can the prudent employer do to ensure physical distancing in temporal terms?
Please refer to our comments above. Bear in mind that, per Mexican employment rules, changes to employees’ work schedules (such as staggered start and leave times) and other employment conditions, may not be unilaterally imposed by employers.
What protections should the prudent employer consider implementing, in addition to physical distancing?
Again, this will depend on the industry, activities and location of the company and its facilities.
For example, as part of the requirements and limitations that employers may be subject to per our comments above, an employer may be required to provide employees with additional protective wear and other protection equipment.
How can an employer screen its employees, including temperature testing, COVID-19 testing and questioning?
Health screening may or may not be required, depending on the specifics of the operation.
Bear in mind that all employee medical information (whether collected as part of COVID-19 screening measures or otherwise) is deemed to be sensitive data under Mexico data protection regulation. The collection, management and processing of this information is subject to very specific regulation and limitations.
As a general rule, non-invasive screenings such as remote temperature measurements are acceptable provided no information is recorded.
What are the requirements regarding travel – either to or from the office or business travel?
To be determined depending on the specifics of the operation as outlined above.
How does the prudent employer decide which employees should return to the workplace?
This will once again depend on the specifics of the employer, its activities and facilities. For example, certain high-risk groups of employees (e.g. those with pre-existing conditions) may be exempt from or be subject to specific restrictions.
In any case, employers need to be mindful not to partake in discriminatory practices or conduct that may affect employees’ rights when determining who should return to work.
What if an employee refuses to return to the workplace?
Employees may freely choose not to return to the workplace, and the consequences of this decision would need to be assessed and determined on a case by case basis.
The Mexican Federal Labor Law expressly provides that an employee may rescind the employment agreement with cause (i.e. for employer’s fault) in the event of a “severe health threat, whether due to lack of proper health and safety conditions or the employer failing to follow the relevant regulation”. A rescission under such circumstances would expose the employer to severance payments that, depending on the specifics of the case, may be substantial.
What other considerations should the prudent employer is thinking about at this time?
As outlined above, workplace reopening in Mexico is subject to very specific and constantly-changing rules. Employers should seek specific advice before undertaking any actions in preparation for and during the reopening of their facilities.