In the evening version of the Federation’s Official Gazette of March 24, 2020, the head of the Ministry of Health, Jorge Carlos Alcocer Varela, M.D., published some preventive measures to mitigate and control the health risks derived from the COVID-19 pandemic.
Minutes later, the Presidential Decree that sanctioned such measures was also published.
It is important to mention that the publication does not represent a declaration of a sanitary emergency, which means that employment relationships continue on the same terms, except for adults aged 65 or older and people vulnerable to contracting the disease (pregnant or lactating women, people with disabilities or chronic diseases), who must stop working with full payment of wages and benefits.
It is also established that activities of all sectors that involve large concentration, transit or displacement of people must be suspended until April 19, 2020. This means that employers must implement the necessary measures to avoid falling in these scenarios.
In the private sector, companies, commercial establishments and all businesses that are necessary to face the contingency will continue to work as usual, such as, for example, hospitals, clinics, pharmacies, laboratories, medical services, financial, telecommunications and information media, hotel and restaurant services, gas stations, supermarkets, transport services and distribution of gas, as long as they do not concentrate a large number of individuals.
Large events of more than one hundred people must be suspended and basic hygiene measures issued by the Ministry of Health must be observed.
The publication is clear that the employment relationships will be maintained and will continue to be governed by the corresponding individual, collective or law contracts. The measures must be interpreted in the sense that employment relationships continue under the same terms and conditions except for the cases referred to above.
On the other hand, when a formal declaration of a sanitary emergency is issued (if it happens) and depending of its scope, the labor consequence will be the suspension of the employment relationships and of its legal effects (rendering service and paying wages).
In this case, the employer will have the obligation to pay employees, without exception, an indemnity of a minimum wage per each day for the duration of the emergency up to a maximum of one month. If the emergency extends, there will be no such obligation and then the employment relationship and its effects are fully suspended without any payment or provision of services.
Of course, if the employer decides to continue paying wages or a portion of them, it will be at its sole discretion or might negotiate with the union and the employees a change in the employment conditions, which can be made even at this moment if it is required.
Mr. Jorge G. De Presno Arizpe and Mr. Alvaro González-Schiaffino, lead partner and partner of our labor law practice group, respectively, together with our associates, are available to comment in more detail the contents of this note.
Jorge De Presno and Álvaro González-Schiaffino