How should employers in Mexico and Brazil manage the covid-19 outbreak?
In late February Brazil reported the first case of covid-19 – the respiratory disease sweeping the globe – in Latin America. LACCA contacted lawyers at the Mexican and Brazilian member firms of Ius Laboris, the world’s largest HR and employment law firm alliance, to get guidance on some of the most frequently asked questions around HR, employment and the coronavirus outbreak.
Here, José Carlos Wahle of Brazil’s Veirano Advogados and Alvaro Gonzalez-Schiaffino of Basham, Ringe y Correa in Mexico answer our questions.
How should employers deal with safety and hygiene questions?
José Carlos Wahle: A renowned Brazilian hospital has issued a range of guidance notices on precautions and best practice for suspected and confirmed coronavirus cases. It is available for you to consult here in Portuguese, Spanish and English and provides thorough guidance on prevention and treatment. Basically, suspected cases should be isolated and undergo medical examination for proper testing.
Alvaro Gonzalez-Schiaffino: All employers in Mexico must have a safety and hygiene committee in place. The main purpose of this committee is to investigate the causes that give rise to accidents and illnesses within the company, as well as to propose the necessary measures to prevent and control these accidents and illnesses. These committees should take charge of and manage communications with employees relating to the coronavirus epidemic. At the time of writing, no government-mandated measures have been issued in relation to workplaces or employees; however, the Mexican Ministry of Health has issued some guidelines to prevent respiratory illnesses in general. They are not specifically related to coronavirus, but are helpful. The guidelines include basic hygiene recommendations such as sneezing into the inside of the elbow or into a handkerchief, refraining from shaking hands or using cheek-kiss greetings and washing hands frequently. Anyone with flu, fever or joint pain that persists for more than a week should see a doctor.
Can employers require employees to get tested for the coronavirus?
Wahle: You can ask an employee about risks of contamination, including travel, because there is a legitimate public interest and because you are legally responsible for ensuring you provide a safe and healthy workplace. However, you cannot force employees to be tested. If someone shows up with symptoms of the disease, you must immediately put the employee on medical leave.
Gonzalez-Schiaffino: You are legally allowed to ask employees to undergo medical examinations and employees are legally obliged to do so. Refusal may be construed as a ground for dismissal. You can certainly ask employees whether they have recently travelled to a high-risk area or whether they have been in contact with an infected person. It is important to ensure employees are issued with a privacy notice that includes treatment of sensitive information, such as results of medical examinations. Issuing a privacy notice is a legal obligation for all employers in Mexico. If an employee is suspected to be sick, you can instruct him or her to attend a Mexican Institute of Social Security (IMSS) clinic for an assessment. If sick leave is not granted, the employee must return to work.
What about school closures, working from home, quarantine and closing the workplace?
Wahle: At the time of writing, Brazil has only had two confirmed coronavirus cases (both individuals had returned from long trips to Italy). There are 120+ cases under observation and 240+ cases have tested negative. The situation is not alarming, but you may want to take precautions to avoid contamination or panic resulting from incorrect information. In extreme circumstances, the government can order quarantine and temporary closing of certain businesses, especially those that involve bringing together large groups of people, such as arenas and theatres. The law is silent about the employment consequences. There is, however, an alternative provision in the law for termination of employment agreements by virtue of ”a governmental act” resulting in the temporary or permanent stoppage of an employer’s activity. If this is invoked, the government would pay severance, but to date and to our knowledge this provision has never been applied.
Gonzalez-Schiaffino: Under Mexican federal labour law, employers must comply with any emergency and preventive measures that are imposed resulting from a health or environmental emergency, such as closures of workplaces, schools, public buildings or even quarantine. We recommend you have a remote working policy in place in the event the government orders the closure of workplaces centres. In our experience, employees who are working from home are often offered a temporary allowance to pay for internet services and general utilities.
How do leave and quarantine affect payments to employees?
Wahle: There is no legal provision covering collective unpaid leave. This would depend on the applicable collective agreement with the relevant union, supported by the legal notion of force majeure. It is unlikely that unions, or the labour authorities with responsibility for overseeing public employment policy, would approve long-term unpaid leave. It would be more realistic to aim to provide paid leave with a temporary reduction of salaries by 25% or less, depending on the circumstances (the duration of leave and your capacity to fund it). Employees who get sick by a pandemic outbreak or any other medical condition that prevents them from working must take medical leave. The employer pays for the first 15 days; after that, the employer must notify the Social Security System (the IMSS) to arrange medical pension coverage for the employee.
Gonzalez-Schiaffino: If an employee is infected, payment will follow the same rules as a general illness certified by the IMSS. The IMSS must issue a sick leave certificate to the employee, ordering sick leave or quarantine. The certificate must clearly specify the start and end date of the leave. When a sick leave certificate is issued, the employer must pay the first three days of the leave in full. From the fourth day onwards, IMSS will pay a daily subsidy of 60% of the salary reported to IMSS. There is no legal obligation for you to pay the remaining 40%.
What about business travel?
Wahle: You should avoid sending workers to areas that are known to be high risk according to official reports and protocols. If not, employees can refuse to go and may even claim constructive dismissal.
Gonzalez-Schiaffino: At the time of writing, no sanitary warnings or special measures have been implemented by the Mexican government. This means you can ask employees to refrain from travelling to a high-risk area but cannot oblige them to do so.
Is discrimination a potential issue?
Wahle: Information is key to avoiding panic and other unjustified reactions, such as discrimination against employees of Asian heritage. If discrimination happens among co-workers in the workplace, you may be liable for damages.
Gonzalez-Schiaffino: No individual in Mexico may be discriminated against for being infected. If an employee is discriminated against because of this, you could be liable to pay legal severance triggered by a constructive dismissal attributable to the employer.
When and what should employers report to the authorities?
Wahle: You must notify the sanitary authorities if there is an outbreak of any pandemic disease among employees. Information will be limited, of course, because you will not have access to the medical diagnosis. It will be a mere report that symptoms were detected. You will not need the employee’s consent to communicate this: it falls under the exemption for sharing data to fulfil a legal obligation.
Gonzalez-Schiaffino: At the time of writing, there are no statutory reporting obligations related to coronavirus. However, if one of your employees is sick or has been diagnosed with the coronavirus by a private physician, we advise you to inform IMSS immediately by directing the employee to the corresponding appropriate clinic.
In any event, it is important to check whether employees have been issued with a privacy notice, as described above.
What official advice is available?
Wahle: The Ministry of Health has a webpage dedicated to public information on the COVID-19 outbreak.
Gonzalez-Schiaffino: Since 1 March 2020, the Mexican Ministry of Health has been issuing daily coronavirus communications on its website. It has also opened a hotline (800 0044 800) for COVID-19 issues. The hygiene and best practice guidance on respiratory infections described above is also available.