Since the SARS-Cov-2 virus was declared a pandemic precisely one year ago, the government, hospitals, society and companies have been making substantial changes in their organization to prevent COVID infections in their employees.
For this reason, many opted for the home office modality to avoid the rapid spread of the virus, however, this was not enough and much less could it be avoided in hospitals and businesses declared as essential.
As a result of the above, the recognition of SARS-Cov-2 as an occupational disease is based on article 475 of the Federal Labor Law, which defines an occupational disease as “any pathological condition resulting from the continuous action of a cause that has its origin or motive in the work, or in the environment in which the worker is forced to provide his services”, which results in sequelae or death of the worker.
Coronavirus SARS-Cov-2 is already contemplated as an occupational disease in article 513 of the Federal Labor Law, specifically in section 136, related to viruses (hepatitis, enterovirosis, rabies, psittacosis, virus pneumonia, infectious mononucleosis, poliomyelitis and others).
In this sense, the Mexican Social Security Institute (IMSS) published on April 3, 2020 the “Qualification criteria for cases with coronavirus as an occupational disease”, which establishes mechanisms to recognize this disease not only in the cases of workers of the Institute, but for all workers affiliated to the IMSS.
With these Criteria, workers who request a temporary disability due to SARS-Cov-2 will receive the benefit of the Institute’s occupational risk insurance, as long as the investigations determine the cause-effect, work-injury.
Thus, on January 8, 2021, the Agreement authorizing the implementation of the strategy of proactive assessment as an occupational risk of workers of affiliated companies who died or suffered sequelae due to severe forms of COVID-19, during the contingency period, was published in the Official Gazette of the Federation.
Unfortunately, however, these measures are only being applied to companies that are considered to be at high risk of contagion and not all of them are within this scope, i.e. it is still complicated for a worker to demonstrate the cause-effect of a COVID contagion and thus access the corresponding disability.
That is to say, employees of non-essential companies have to demonstrate that it was really due to occupational risk the way in which they were infected, which, at the height of the pandemic was relatively easy since in theory no one left their homes, however, nowadays people no longer take hygiene or care measures, it is easier to become infected and therefore more difficult to prove that it was due to occupational risk. Therefore, it is urgent and necessary for the IMSS to issue clear guidelines to determine in which cases it is an occupational disease and in which cases it is not. This should cover all workers and those who have been incapacitated for more than 28 days, not only those who work in high-risk activities.
But all of the above does not prevent companies from following the safety protocols established since the beginning of the pandemic by the authorities, which is why many have implemented measures such as staff rotation on specific days and times, teleworking, screens that separate employees, no discrimination against workers because of their health condition, continuity of preventive health programs, filters at the entrance of employees to work, among others.
In conclusion, despite the existence of specific guidelines for COVID as an occupational hazard, neither the health authorities nor the companies are really prepared to pay attention to this situation.
If you have any questions or require legal advice for your company or as an employee, do not hesitate to contact us.
Gloria Ponce de León & Hernández