Rosalinda Cruz
Director General
COINSRC Abogados
Expert Contributor

Was the Law Prepared to Deal with COVID-19?

By Rosalinda Cruz | Mon, 10/12/2020 - 13:53

The health contingency triggered by COVID-19 as a global pandemic is undeniably changing the world. Not only from a social and economic point of view, but also in the way of thinking about those of us who live it. It is also undeniable that no one was ready to face this kind of event. So today, I ask myself from my area, which is labor litigation: is it really possible to legislate fair rules to face a health contingency in this case, or do we have to wait for the event to happen and improvise or try to improvise as we proceed?

In the Federal Labor Law prior to the 2012 reform, the possibility of this type of contingency was not contemplated. If a situation like the one we are experiencing had occurred, there would have been no normative rule governing the fate of employer-worker relations. 

In April 2009, the world was facing a health contingency called the 'H1N1 subtype influenza A virus,' which resulted in approximately 15 days of suspension of activities. During this period, both enterprises and employees were not as affected as the suspension period was relatively short and the recovery from the economic losses suffered was not as long. As a result of this experience, the 2012 amendments to the Federal Labor Law and the 2009 experience include the health contingency figure and, for that purpose, it is established that the labor relationship between the employer and the worker will be suspended, obviously without the responsibility of either party, so that the suspension also implies the suspension of all labor rights of the employer. I imagine that the period mentioned was based on the experience of the contingency of influenza and that it was not imagined that it would last for more than 30 days.

Then, if the employment relationship is suspended, the employer is authorized to remove the worker from the social security system, with the worker being protected only by the grace period of two months granted by the IMSS Law to continue enjoying the medical service. After this period, what happens to the health of the worker and his/her family, what happens to those vulnerable workers who can no longer enjoy medical service, those who do not yet qualify for a pension, those who are receiving medical treatment, and what happens to the worker's income after several months of the pandemic? The legal response is "NOTHING" or "I DON'T KNOW."

However, in the DNA of the Mexican people, we must proudly recognize the vocation of helping our fellow people. It is enough to remember the natural disasters that have taken place, not only in Mexico, but also in other countries where Mexicans have always been ready to help. In the event of a pandemic, they have placed their will at the service of others either verbally or by written agreement, regardless of the nullity of the law's provisions for dealing with this type of event. In the meantime, the business side seeks to maintain the source of work, work behind closed doors, allow remote working, reduce salaries for employees and try to suspend the employment relationship to the minimum number of employees. For their part, workers accept wage reductions, the total or partial suspension of their labor relationships, the reduction of labor rights and benefits. 
It is, therefore, evident that our labor law is not prepared to face a health contingency. So, I return to my reflection, leaving all readers to answer this question – not only to provide answers, but also to take action within the scope of our duties.

Photo by:   Rosalinda Cruz