New criteria for vulnerable individuals to return to work amid COVID-19 pandemic

Mexico has issued a wide range of regulations to contain the COVID-19 pandemic and protect public health. Notably, the Federal Health Ministry (SSA) and the Mexican Social Security Institute (IMSS) have recently issued special restrictions and recommendations with regard to the return to work of individuals classified as part of vulnerable groups, who, due to pre-existing conditions or illnesses, are at a greater risk of complications or even death if they contract COVID-19.

Published regulations

On 24 March 2020 the SSA published in the Federal Official Gazette the agreement establishing the first preventive measures intended to mitigate and control the health risks relating to COVID-19 (the 24 March 2020 agreement). Such publication provides the following in connection with vulnerable groups:

Avoid attendance to work centers, public spaces and other crowded places for adults of 65 years of age or older and groups of people at risk of developing serious illness and / or dying from it, whom at all times will receive a paid leave and enjoy their salary and other benefits established in the current regulations indicated in paragraph c) of this article. These groups include pregnant or lactating women, children under 5 years of age, people with disabilities, people with chronic non-communicable diseases (people with hypertension, pulmonary or kidney failure, lupus, cancer, diabetes mellitus, obesity, liver or metabolic failure, heart disease), or with any disease or pharmacological treatment that causes suppression of the immune system. (Emphasis added.)

On 30 March 2020 the General Health Council – the highest-ranked authority in the determination of health issues in Mexico – declared the COVID-19 epidemic a health emergency due to force majeure. Consequently, on 31 March 2020 the SSA issued an additional agreement starting the nationwide social distancing programme, which suspended all non-essential activities in the public, social and private sectors and encouraged people to stay at home (the 31 March 2020 agreement). The aforementioned publication indicated the following with regard to vulnerable groups:

The co-responsible domiciliary safeguard is strictly applied to any person over 60 years of age, pregnant or immediate puerperium, or with a diagnosis of high blood pressure, diabetes mellitus, chronic heart or lung disease, immunosuppression (acquired or caused), kidney or liver insufficiency, regardless of whether your work activity is considered essential. (Emphasis added.)

On 29 May 2020 the SSA, the IMSS, the Labour Ministry and the Department of Economy issued the Specific Technical Guidelines for the Reopening of Economic Activities (the federal guidelines), setting out how companies and work centres could resume face-to-face activities (the 29 May 2020 agreement). The guidelines also introduced an epidemiological alert system, which uses a traffic light method as follows:

• red for the maximum level of risk;
• orange for a high level of risk;
• yellow for a medium level of risk; and
• green for a low level of risk.

Prior to returning to work, companies must implement a sanitary safety protocol, under which one of the first actions is to identify the vulnerable groups within their personnel.

Pursuant to the federal guidelines, the following measures will be implemented with regard to vulnerable groups' return to work:

• during a red (maximum) level of risk, vulnerable employees should stay at home; and
• during an orange (high) and yellow (medium) levels of risk, home office should be prioritised for vulnerable employees. However, if remote work is impossible, additional protection measures in the workplace should be taken into account, including:
  • the use of personal protective equipment;
  • the availability of hand sanitiser;
  • the observation of social distancing;
  • the implementation of physical protection barriers;
  • staggered schedules to avoid large groups of employees meeting at the same place and time; and
  • special exits and lunch hours for vulnerable personnel.

The Labour Ministry issued action guides that were updated with each of the aforementioned agreements, recommending that vulnerable employees stay at home.

On 27 July 2020 the SSA published in the Federal Official Gazette that modifications to the vulnerability criteria would be publicised through the official website https://coronavirus.gob.mx/. The document entitled "Criteria for population in vulnerable situations that may develop a complication or die from COVID-19 in the reopening of economic activities in work centers" was published on said platform (the vulnerability criteria).

The vulnerability criteria narrowed down the specifications under which a person could be considered part of a vulnerable group, refining the initial generalisation. For example, initially all pregnant women were considered to be vulnerable, whereas the vulnerability criteria have limited the vulnerability classification to pregnant women in their third trimester.

Who is considered vulnerable?

Since COVID-19 is a new disease and the pandemic is affecting populations around the world differently, scientific evidence has been evolving to determine which individuals are at a greater risk of contracting COVID-19. Similarly, Mexican regulations regarding vulnerable groups have evolved, including narrower criteria for different conditions and illnesses as illustrated below.

Return to work for vulnerable groups

Initially, the federal guidelines stated that vulnerable groups could return to work when the epidemiology alert system was orange. Notably, local governments have issued their own recommendations and the guidelines for each state have changed. For example, while the federal guidelines indicated that vulnerable groups could return to work in the orange stage, the State of Chihuahua's guidelines indicated that they could not do so until the traffic light system was on the yellow stage.

Once the vulnerability criteria was issued in late July 2020, the standard under which vulnerable groups could return to work shifted as follows:

• The general rule is that vulnerable groups should stay at home until the epidemiology alert system turns to yellow.
• People with cancer in the range of the mentioned criteria should stay at home until the epidemiology alert system turns to green.
• People with two or more comorbidities in the range of the mentioned criteria should stay at home until the epidemiology alert system turns to green.

Inspections and penalties for companies

The authorities have been carrying out meticulous inspections to verify the correct implementation of health and safety protocols in workplaces, including obligations relating to the detection and protection of vulnerable groups. Among the specific issues under review, the authorities request from employers a list of vulnerable employees and verify if any such people are physically present at the workplace.

The Labour Ministry and the Federal Commission for the Protection Against Sanitary Risks (COFEPRIS) have been carrying out federal inspections with regard to COVID-19 in the workplace. When inspections are carried out by the Labour Ministry and it determines that there are violations of the federal guidelines, it will urge the workplace to suspend operations and correct any violations. If such instruction is not followed, the Labour Ministry will notify the COFEPRIS, which can impose sanitary penalties for violations.

On the one hand, the COFEPRIS can order the immediate (total or partial) suspension of work or services which will be applied for the time necessary to correct irregularities that endanger people's health. On the other hand, the General Health Law (LGS) provides administrative penalties for violations in connection thereto, which vary depending on the severity of the violation, including:

• a warning;
• a fine (the worst-case scenario indicated by the LGS corresponds to 16,000 times the unit of measure – roughly $66,000);
• temporary or definitive, partial or total closure; and
• arrest for up to 36 hours (in case of opposition to the health authority's rules, among other things).

The administrative procedure established for the application of penalties in the LGS must be followed.

Moreover, local governments have authorised local agencies in matters of health, labour or administrative verification to carry out inspection visits and have established their own list of penalties, in accordance with local legislation.