Mexico: “New normal” technical guidelines to go back to work

Dentons

On May 14, 2020, the Federal Ministry of Health (Secretaría de Salud) (SSA) issued an Order to establish the rules and process to restart social, economic and school activities in Mexico as of June 1, 2020, and to determine that mining, construction and auto manufacture will be considered essential activities.

In the aforesaid Order (and its amendment of May 15), the SSA also:

  1. determined that companies engaged in essential activities (not already in operation under March 31, 2020, and subsequent orders) would be able to restart activities before June 1, 2020, provided these companies/businesses complied with certain Technical Guidelines jointly issued by the SSA, the Ministry of Economy, the Ministry of Labor and Social Welfare, and the Mexican Institute of Social Security (Instituto Mexicano del Seguro Social) (“IMSS”) (the “Essential Activities Guidelines”). These Essential Activities Guidelines were issued on May 18, 2020; and
  2. established a weekly color-coding (traffic light) system by state/region to determine what activities each state/region may undertake in a given week.

On May 29, the SSA released the first weekly traffic light and all but 1 state (Zacatecas) was in red (maximum alert). This means that, according to federal rules, the 31 remaining states in red (maximum alert) may only continue to carry out essential activities unless the traffic light changes the following week.

Despite the above, on the same event where the first traffic light was announced, the President mentioned that if local/state governments chose not to follow the orders of the SSA (notwithstanding the legal mandate of the Mexican Constitution and General Health Law), the federal government will not “fight” them, and they are free to establish their traffic light or measures to resume activities.

On the evening of May 29, 2020, the SSA published in the Federal Register (Diario Oficial de la Federación) an Order establishing the Specific Technical Guidelines to Reopen Economic Activities (the “Reopening Guidelines” or “Guidelines”). What follows is a high-level summary of these Reopening Guidelines.

I. Scope of Application

The Reopening Guidelines are mandatory to all work centers to achieve a safe, staggered, and responsible return to the New Normal.

The Guidelines consider four dimensions to apply them at the workplace: (i) type of activity (essential and non-essential), (ii) size of the company/business, (iii) the sanitary alert level in the location of the work center, and (iv) the characteristics of the work center.

II. Strategy of the Government

As of June 1, dubbed the “New Normal”, “all companies may restart operations provided these companies implement the content of these guidelines and follow the traffic light indications, therefore no previous authorization is necessary”. Essential companies are required to undergo the online self-evaluation as provided by the Essential Activities Guidelines.

III. Guiding Principles

To apply and enforce the Reopening Guidelines the following guidelines' principles shall be considered: (i) privilege health and life, (ii) solidarity and no discrimination, (iii) moral economy and productive efficiency, and (iv) shared responsibility (public, private and social). The Guidelines provide a short description of each principle.

IV. Work Center Categories

As anticipated above, work centers are required to consider 4 dimensions to identify the measures to implement.

First, companies must determine whether they are considered essential based on the orders issued by the SSA on March 31, April 6, and May 14 and 15, 2020. The Reopening Guidelines contain a consolidated list of these activities.

Second, companies/businesses must identify the epidemiological risk legal (“ERL”) for its municipality or state. These levels are:

  1. MAXIMUM (red). Only essential activities may operate.
  2. HIGH (orange). Among others, the following applies, full operation of essential activities and reduced operation of non-essential activities. Non-essential activities’ personnel at 30%.
  3. INTERMEDIATE (yellow). Public spaces activities are limited and full economic activity.
  4. REGULAR (green). All personnel may be at work (including the population at risk).

Third, the size of the company/business based on the following:

Size Sector Range of number of workers
Micro All Up to 10
Small Commerce From 11 to 30
Industry and Services From 11 to 50
Medium Commerce From 31 to 50
Services From 51 to 100
Industry From 51 to 250
Large Services and Commerce From 101
Industry From 251

Fourth, to identify the internal characteristics of each company/business. This means identifying the population at risk, personnel in charge of minors and the elder, areas, and spaces of the company/business.

V. Mandatory Measures

Training and orientation. This includes the importance of not going to work if they have symptoms, public transportation behavior and measures, frequent hand washing, social distance (1.5 meters), among others. Also, establish training programs for management and other top offices.
Health protection. Stay at home. Social distancing at work, ingress and egress controls, preventive measures at the workplace, use of personal protection equipment (EPP in Spanish), among others.

VI. Supervision and Surveillance

Like with the Essential Activities Guidelines, the Reopening Guidelines establish that a person or committee shall be made responsible within each company or business to ensure compliance with the Guidelines, monitor regulation and provisions issued by the governmental authorities, maintain a registry of that involuntary confinement and possible contagion cases.

VII. Measures to Protect the Population deemed “at-risk” in High and Intermediate Regions

Works centers located in medium (intermediate) and high-level regions (orange and yellow) are required to implement differentiated measures for the population at risk. Likewise, they shall consider suspending or be flexible about the attendance of employees who care for minors, the elderly, or the population at risk at their homes. Likewise, the population at risk shall be allowed to make hospital visits frequently.

In regions of maximum risk (red) it is prohibited for these persons to attend work.

VIII. Hygiene Safety Measures at the Workplace

The Guidelines establish measures that all work centers are required to implement. All essential activities are required to self-evaluate compliance with these measures online at www.nuevanormalidad.gob.mx

While no previous authorization is required to resume activities as of June 1, 2020, in case of a visit or inspection by federal authorities, companies and businesses are expected to comply with the Guidelines.

The Reopening Guidelines include a list of “indispensable” and “recommended” actions and measures. According to the size of the business/company, the greater number of recommended measures are established—all companies are required to implement 15 indispensable measures (6 of which are related to the responsible for committee or person responsible for compliance with the Reopening Guidelines). These include, among others:

  1. The formation of the committee or designation of the person responsible for compliance;
  2. Separation of workstations with physical barriers, or if not possible, at least 1.5 meters of separation between them;
  3. Body temperature reading upon ingress and egress of the work center;
  4. Guidelines regarding visitors, contractors, and suppliers;
  5. Cleaning and sanitizing protocols;
  6. Employer provides EPP to employees;
  7. Training programs are put in place, for which the materials provided by the IMSS may be used (CLIMSS);
  8. The company/business has instruments to identify symptoms; and
  9. Protocol for cases where employee contracts COVID-19 to protect the employee and the rest of employees.

With respect to recommended measures, Large companies are required to implement 72 indispensable measures, while Micro and Small companies are only required to implement 40.

We expect that the Federal Government will perform visits, inspections, and/or audits to ensure compliance with these measures. It is important for companies or business to understand that despite what local and/or state governments may dictate, companies should ensure compliance with the Reopening Guidelines given that: (i) the federal Orders have not been rendered ineffective or discontinued (despite remarks by the President in its daily press briefing that the Federal Government “will not fight” state governments), and (ii) matters of labor and safety at the workplace are, for the most part, federally regulated.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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