Mexico’s Ministry of Health Cites Force Majeure in Declaring National Sanitary Emergency Due to COVID-19
)n March 30, 2020, Mexico’s Ministry of Health declared a national sanitary emergency “per force majeure” due to the COVID-19 pandemic, mandating the immediate suspension of all private and public sector “non-essential” activities. The order is effective March 31, 2020, through April 30, 2020.
In a subsequent order, published March 31, 2020, in the Official Gazette of the Federation (Diario Oficial de la Federación or DOF), the Ministry of Health provided a detailed list of essential and non-essential activities and businesses, as well as “obligatory” health practices intended to prevent the further spread of COVID-19.
The directives from the Ministry of Health contain an extensive list of activities considered to be essential to support the country’s national health system in its efforts to mitigate and control the risks of COVID-19. The activities include “Those that are directly necessary to attend to the national health emergency, such as the work activities of the medical, paramedical, [and] administrative and support branches throughout the National Health System.” These activities and industries also include medical and pharmaceutical manufacturers and the corresponding supply chain activities.
Other activities deemed essential include, but are not limited to, the following:
- Security, public security, and practice of law
- Financial services
- Utilities distribution (gas, water, energy)
- Agricultural, fishing, and agroindustry production
- Food distribution, such as through markets and supermarkets
- Transport and freight services
- Chemical industry
- Hardware stores
- Courier services
- Private security services
- Shelters and care centers for women
- Private emergency services
- Funeral services
- Storage services
- Airports, ports, and railways
- Services “directly related with social government programs”
- Critical infrastructure services
Conditions on Group Sizes, Hygiene, and Safe Distances
The Ministry of Health stated that all facilities that provide essential activities must limit meetings and gatherings to no more than 50 people. Individuals working in facilities providing essential services must:
- wash hands regularly;
- cough or sneeze into one’s arm;
- use safe distance precautions while greeting and saying goodbye; and
- not kiss, hug, or shake hands.
The Ministry of Health also stated that applicable safe distance measures will continue in place.
Stay-at-Home Order and High-Risk Individuals
The Ministry of Health’s orders also include a stay-at-home provision, which Mexican and non-Mexican nationals “are urged to comply with.” However, the stay-at-home order is “strictly applied” to high-risk individuals, such as those who are 60-years-old or older, women who are pregnant or breastfeeding, and people with chronic non-transmittable diseases.
As a consequence of this directive, employers may be able to send home individuals who are at high risk. Employers would still have to comply with requirements regarding affected employees’ current salaries and benefits.
Work Agreements and Contracts
Employers are obligated to maintain existing employment contracts, collective bargaining agreements, and/or current terms and conditions of employment.
Legally, suspension of the labor relation needs to be “declared by the authority.” Currently, it is not possible to file for suspension, and authorities are closed.
Options to Consider for Non-Essential Businesses
Employers that are faced with having to cease operations due to the Ministry of Health’s directives may want to negotiate with employees and unions—preferably in writing—about using vacation leave during the shutdown.