What travel and labour law changes affect Peru and Mexico right now?
Some countries are easing the restrictions they previously put in place to combat covid-19 while others are still taking a firm stance. In the third article of a series on this topic, LACCA turns to member firms of Ius Laboris, the world’s largest HR and employment law firm alliance, provide guidance on the impact of covid-19 on mobility and labour legislation in Mexico and Peru.
Partner Álvaro González Schiaffino of Mexican firm Basham, Ringe y Correa and associate Ximena Ramos of Peruvian firm Estudio Olaechea, both member firms of Ius Laboris, explain the key guidelines affecting their country on matters concerning travel and remote working.
How has the covid-19 crisis developed in Mexico?
Álvaro González Schiaffino: The covid-19 pandemic was confirmed to have reached Mexico in February 2020; however, the National Council of Science and Technology reported two cases of the virus in mid-January 2020 in the states of Nayarit and Tabasco.
On 22 January, the Secretariat of Health issued a statement saying that covid-19 did not present a danger to the country. On 30 January and before the declaration of a pandemic by the World Health Organization, the government developed a Preparation and Response Plan that was produced by the General Health Council, a working group led by the Secretariat of Health, composed of different health entities that were briefed to manage the imminent arrival of the pandemic. This group implemented a series of alert measures, rehabilitation and updating of epidemiological regulations based on the International Health Regulations. Mexico was the first Latin American country to deploy mathematical modelling of infectious diseases.
When did there become a state emergency?
González: With the number of confirmed and suspected cases increasing dramatically in Mexico, on 30 March the General Health Council declared the epidemic caused by covid-19 as a sanitary emergency due to force majeure and several new measures were put in place. Non-essential activities and meetings of 50 participants or more were suspended. Essential activities include medical services and supplies, public safety, fundamental economic functions, government social programmes, and critical infrastructure.
As in other countries, individuals are advised to practise good hygiene such as frequent hand washing and social distancing.
What travel restrictions are in place and who is affected?
González: On 19 May, the Mexican government confirmed that the land border between the US and Mexico will remain closed to all non-essential traffic for a further 30 days. This closure applies primarily to tourism and recreational travel. Cargo, trade and healthcare workers will still be able to cross the border. Some airlines are imposing their own additional restrictions on travellers, distinct from the Mexican government guidelines. These restrictions may apply for domestic and international flights.
How has the tourism industry been affected? Has there been any relaxing of rules?
González: Derived from the 30 March lockdown order, Mexican tourism and health officials instructed hotels to cancel new and existing reservations and close for non-essential business. Guests that require accommodation due to essential business activities are permitted to stay in hotels with a maximum occupancy of 15% and may be asked to provide an employer’s letter certifying the nature of their business. Now that a strategy to restart socio-economic activities has been announced, hotels are able to take reservations and receive guests for recreational stays with a maximum occupancy of 25%.
Given that a sanitary emergency has been declared, employers can certainly ask employees to refrain from travelling to a high-risk area but force them not to. However, most critical risk areas have closed their borders and travel to these areas is banned.
Are there any limits regarding visas?
González: The National Immigration Institute is currently working with limited personnel and visa applications are being delayed more than usual; however, no limitations or restrictions on applying for visas have been issued, regardless of whether applications are for visas for leisure or work-related purposes.
Are people supposed to stay at home and quarantine in Mexico?
González: Self-isolation at home is not mandatory across all of Mexico, however, several states and municipalities have imposed curfews and movement restrictions on non-essential activities and have required citizens to wear masks when outside. Those not involved in essential activities and people over 60 or with high-risk medical conditions such as hypertension, diabetes, heart disease, lung disease, a compromised immune system and those who are pregnant or post-partum have been advised to stay home.
It has been announced that states and municipalities may implement additional closings and restrictions on public gatherings, transportation, business operations, and government operations.
How is the country going to get back to normal?
González: On 14 May, the Ministry of Health published the official strategy for the restarting of social, educational and economic activities in the context of the covid-19 pandemic, as well as a regional process to assess the epidemiological risk in each state based on a coloured “traffic light” system. This will remain in effect until the sanitary emergency ends.
The reopening of social, educational and economic activities suspended as a result of the covid-19 pandemic is based on a three-stage strategy.
The first stage started on 18 May and consisted of the unrestricted reopening of economic activities in municipalities without confirmed cases of covid-19 that are not situated next to municipalities with cases of infection.
The second stage, from 19 May to 31 May,consisted of carrying out actions aimed at restarting economic activities through the preparation of sanitary safety protocols, training of employees, reconfiguration of workspaces and introduction of access controls to establishments. These are provided in the safety and hygiene guidelines published by the Ministry of Health, in coordination with the Ministries of Labour and Economy and the Mexican Institute of Social Health.
The last stage started on 1 June and represents the so-called new normal. A traffic light system will measure epidemiological risk by region (state or municipal) and will be reviewed each week. This determines the sanitary alert level and determines what kind of activities are authorised to be carried out in the economic, labour, education and social sectors.
Who is in charge of this traffic light system review?
González: The epidemiological risk traffic light alerts will be dictated by the federal authority and will be divided into maximum alert (red), high risk (orange), intermediate risk (yellow) and low or ordinary risk (green).
What will stage three look like?
González: In the “new normal”, companies will be allowed to restart operations and will only be required to consider the guidelines and to comply with the epidemiological risk traffic light system. This means that no prior authorisation will be required.
In this phase, an online self-evaluation is mandatory for companies with essential activities. Online self-assessment will be voluntary for companies that are engaged in non-essential activities, regardless of size.
During this stage, social, educational and economic activities in the country will restart based on the colour of the traffic light system by region, assessed.
As of 10 June, all states of the Mexican Republic are set to red, which means that only companies carrying out essential activities are allowed to open.
How has the covid-19 crisis developed in Peru?
Ramos: On 15 March, Peru announced a national state of emergency, which took effect on 16 March and has now been extended until 30 June. While Peru was the first in the region to implement quarantine measures, despite its early safety measures, the country now has among the highest numbers of covid-19 cases in South America. By 30 June, Peru will have been under lockdown for more than three-and-a-half months, outlasting restrictions in some of the hardest-hit countries in the pandemic including Italy, Spain and China.
Are there any signs of the lockdown easing?
Ramos: On 3 May, the Peruvian government announced its plans to gradually reopen, which will happen in stages. The first stage began in May, allowing restaurants to reopen for collection and delivery, as well as hotels and tourist transportation for essential services, e-commerce, services provided to companies and notary services, among others. The second stage has recently begun in June allowing transport services, sale and maintenance and repair of vehicles and motorcycles, private and public construction and professional services, among others, to reopen.
Recently, certain physical activities outdoors have been allowed for 60 minutes between 5am and 6pm. Some of the activities allowed in this first phase are hiking, Pilates, yoga, cycling and jogging. In the third stage, which will begin at the end of the quarantine, more activities will be allowed.
What is happening with visas for Peru?
Ramos: Since 3 June, the National Superintendence of Migrations has launched a new virtual platform through which it has allowed various migratory procedures to be conducted. Among the most important are extensions of residence and changes in migratory status. It has been made to avoid covid-19 infections by digitising procedures. Visa application procedures will only be allowed in exceptional situations for services that are linked to this or international transit.
The National Superintendence of Migrations has also implemented a platform for obtaining virtual immigration cards (the official document for foreign nationals), since it is not possible to go to the immigration offices to collect the card.
Are people supposed to stay at home and quarantine in Peru?
Ramos: There is a nationwide curfew between 9pm and 4am with effect from 25 May in the Tumbes, Piura, Lambayeque, La Libertad, Loreto, Ucayali and Ica regions. In the Santa, Huarmey and Casma provinces in the Ancash region, the curfew is from 6pm to 4am.
Home isolation is mandatory on Sundays and everyone must wear face masks when outdoors.
What travel restrictions are in place?
Ramos: The Peruvian government has ordered the total closure of the borders during the state of emergency. The international transport of passengers by land, air, sea and river, is suspended. The measure could be extended by the Peruvian authorities, depending on the evolution of the pandemic. The transportation of cargo and merchandise is not included within this temporary closure.
Visitors arriving in Peru will have to spend 14 days (two weeks) in quarantine immediately after arrival. The exact location of the quarantine will be decided by the regional government upon arrival. Before being able to move from one region of Peru to another, the local government may first require travellers to submit a medical certificate, following a rapid covid-19 test, stating they are free from infection.
Are other exceptions to note?
Ramos: Restrictions may not apply if the traveller has a travel permit (salvo-conducto) from the Peruvian authorities. These are mainly issued for those with confirmed bookings to leave Peru but there may be exceptions if no flight has been booked but an individual wants to travel within Peru from one region to another. If this applies, travellers should contact their embassy, who will make a request to the Peruvian authorities.
What are the key labour guidelines in place?
Ramos: As a general rule, employees should not go to their normal workplaces to work unless they perform essential functions, such as providing food or telecommunications maintenance, or if the company or its services are part of any of the gradual reopening plans. If this does not apply or if the employees belong to a risk group, that means they are unable to go to work at their normal workplaces; remote work may be implemented. The employer should set out the conditions for remote work and provide all necessary physical and digital support and any necessary training.
Who can be exempt from remote working?
Ramos: Remote working does not apply to employees with confirmed coronavirus infection, nor to those on sick leave. In those cases, the duty to provide services is suspended but this does not affect the obligation to pay these employees in the normal way. At the end of any sick leave, the employee should start remote working.
What if remote working is not possible?
Ramos: In cases where remote work is not possible, the employer must grant employees a paid licence (to be compensated later) and apply all measures necessary to maintain the employment relationship. These may include granting accrued vacation not yet taken, agreeing to employees taking advanced vacation, agreeing the reduction of the working day or week with a proportional reduction of remuneration or simply reducing remuneration, among others.
If it is not possible to implement these measures, the employer can exceptionally apply ”perfect suspension of labour” (that is, put the employees on unpaid licence). To do so, the company must comply with the applicable conditions and procedures and apply to the Labour Ministry for its approval. It is also possible to sign an agreement for an unpaid licence with employees. In this case, the approval of the Labor Ministry is not required as it is a private document.