The world is in the midst of a serious health contingency caused by the disease now known as Coronavirus or COVID-19. The World Health Organisation has declared a global pandemic, in light of the number of contagions and deaths caused by the virus, worldwide.
As a result of this pandemic, the Federal Government, through the General Health Council (the highest health authority in Mexico), decided to “recognise the Coronavirus epidemic of priority care”, as well as to implement measures to prepare, prevent and control the epidemic, which specifies a series of recommendations to control the disease at the national level.
In addition to the mechanism implemented in the workplace by both the Government and companies, in order to protect employees from the Coronavirus (COVID-19) epidemic, the Mexican Social Security Institute (IMSS) issued an ordinance in April 2020, regarding the criteria necessary to conclude that COVID-19 is an employment-related disease. It is important to mention that IMSS determined that there are different levels of exposure, allocated from “very high” to “low” risk, depending on repeated or extended contact with sources of possible contagion, as a result of the work that an employee may perform.
In this regard, section 513 of the Federal Labour Law (FLL) provides a list of diseases and permanent disabilities resulting from employment risks. Based on the above, the IMSS considered that the Coronavirus disease should be classified as “Virosis” in accordance with subsection 136, section 513 of the FLL.
However, the Supreme Court of Justice has sustained the contention that, to determine whether a disease is caused as a result of workplace exposure, the fact that a particular virus can be found in the list of diseases is not enough evidence in and of itself. Instead, there must be a link between that causes the disease to be contracted within the workplace, or due to the work performed by the employee. In other words, medical expert opinion alone cannot be used to substantiate the presumption that it is an employment-related disease. Rather, it is necessary to establish that the employee contracted the disease as a result of his/her exposure to the disease, whether in or out of the workplace, and as a result of the activities carried out by the employee.
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