Source: Morgan Lewis
Faithful to the historically employee-friendly nature of laws and courts in the region, regulators in Mexico are adopting policies to protect remote workers and their constitutional rights to make unpressured health-related decisions.
To assist canadian businesses with operating remote workforces in Mexico and those seeking to shift back to an in-office setting, here a guide on Mexico (from Morgan Lewis) to help navigate the vaccine their mandates and remote working policies.
Remote Working Regulations
Under Mexican law, the “telework” regulation (Chapter XII-Bis of the Federal Employment Act (Ley Federal del Trabajo or LFT)) applies to any job that involves more than 40% of its time in telework.
Under subparagraph I of Article 330-E of the LFT, the employer must “provide, install and maintain the equipment necessary to undertake telework activities, including computer equipment, ergonomic chairs, and printers, among others.” Further, under subparagraph III of that same article, employers in Mexico must “assume all costs derived from employees’ telework, such as payment for telecommunication services (internet) and the proportional part of the electricity bills.”
While the law is silent as to the timing and there is no published binding case law on point, reimbursement of such expenses must be made within a reasonable amount of time. If one considers that pay periods in Mexico are every other week, an argument could be made that making reimbursements of properly documented telework-related expenses every other period (on a monthly basis), for instance, is a reasonable accommodation.
Vaccination Policies
While an employer in Mexico can ask for evidence of vaccination, it cannot discipline an employee for failure to provide such. Employees cannot be obligated to be vaccinated as a condition to return to work. Any vaccination mandate by employers is considered a violation of individual rights afforded by the Mexican Constitution, and termination (or any undertaking of disciplinary measures) due to the employee’s refusal to vaccinate will be considered discriminatory and could result in a claim for wrongful termination and, consequently, the reinstatement of the employee or payment of mandatory severance under the law.
As a general matter, under subparagraph XIX of Article 132 of the LFT, it is the employer’s obligation to provide employees with all prophylactic medication mandated by the sanitary authorities in those places where tropical or endemic illnesses exist when there is an epidemic risk. While Mexico’s Health Ministry (Secretaría de Salud) has not issued mandatory guidelines for employers, it has suggested that people take precautions when in danger of contact with COVID-19. Also, a recently enacted Official Mexican Standard (NOM-035-STPS-2018) dealing with the identification and prevention of psychosocial risk factors at the workplace imposes an obligation on employers to (aside from creating a policy and program to identify those risks) take all necessary steps to identify (and attend to) unsafe or dangerous conditions at the workplace.
There is very little precedent on the supervision and enforcement of Mexican law and the NOM referred to above in light of a health epidemic event; however, there is some risk to employers if they fail to take affirmative steps to prevent the spreading of COVID-19 when there is reasonable fear of it happening, both from a publicity and legal perspective. As to how material the legal risk is, if any, it is difficult to determine at this point.
Notwithstanding the above, employers can ask employees to submit to (and in fact have an obligation to conduct) periodic and reasonable COVID-19 screenings, and implement self-disclosure and virus-spreading prevention measures in the workplace. For instance, employers can ask for mandatory disclosure of (1) an employee’s exposure to a COVID-19–infected person or travel to high-risk COVID-19 jurisdictions, (2) manifestation of COVID-19 symptoms, (3) daily temperature screenings, and (4) use of masks in the workplace, among other preventive steps. Further, should any employee show symptoms, be exposed to infected people, or travel to a high-risk area, the employer could ask for a COVID-19 negative test prior to allowing such employee to return to the workplace.
It should be noted that payment for COVID-19 testing has been customarily paid by or refunded by employers in Mexico, even when there is no clear guidance that would require employers to do so, given the employee-friendly nature of courts and laws in Mexico. If an employee refuses to take the COVID-19 test when reasonably required to do so by the employer, then a case-by-case-basis analysis should be undertaken to discuss the possibility of “cause” for termination. That said, any termination should be carefully considered with the legal and human resources teams, as “cause” is very narrowly defined by Article 47 of the LFT, and given the employee-friendly nature of Mexican employment law and courts referred to above.
How We Can Help
Symbiosis has deep cultural and business ties with the region and an understanding of the challenges presented to canadian clients doing business in Mexico. Our team is positioned to timely and efficiently assist clients during these challenging times, as well as provide counsel and the legal tools to assist in their possitioning in Mexico.
