May 1, 2020

Criteria for Rating SARS-CoV-2 (COVID-19) Cases as an Occupational Disease in Mexico

Holland & Knight Alert
Leslie Palma

The Directorate of Economic and Social Benefits of the Mexican Social Security Institute (IMSS) established the criteria for qualifying cases with SARS-CoV-2 (COVID-19) as an Occupational Disease on April 3, 2020.

The purpose of this criteria is to facilitate the determination by medical personnel of the Occupational Health Services of the cause-effect relationships and work damages that potential COVID-19 cases can create, so that they may be qualified as occupational illnesses, as applicable. To this end, positions that expose employees to COVID-19 in the practice or by the nature of their work also must be considered.

The level of risk depends on the prolonged or repeated contact with possible sources of the COVID-19 infection during the pandemic that may be at the following levels of very high, high, medium or low:

  1. Very High Exposure Risk: healthcare personnel directly involved in the care of patients suspected or diagnosed with COVID -19
  2. High Exposure Risk: healthcare personnel not directly involved in the care of patients suspected or diagnosed with COVID-19
  3. Medium Exposure Risk:
  • (i) personnel directly involved in the care of the general public who, due to their activity, are at greater risk of contracting COVID-19 than the general public or at greater risk of being in contact with contaminated materials and surfaces
  • (ii) employees who interact with people who do not wear protective equipment and have frequent interactions with the general public, coworkers, customers, educators, teachers, and other individuals or groups.

Employees who have close and frequent contact with the general population should reinforce preventive and health advocacy measures and should be trained on proper handwashing with soap and water and/or 70 percent alcohol gel.

  1. Low Exposure Risk: Personnel who do not attend to the general public, but by nature of the essential activities they carry out are at a greater risk of COVID-19 infection than the general public

In view of the above, we consider that if an employee contracts COVID-19, the IMSS will consider this infection an occupational disease if it can be demonstrated that the worker was exposed to someone with said disease, without proper protection, in the exercise or as a result of his or her work and the consequence is an increase in the classification of the risk premium at the work center where said employee is registered.

We suggest that companies provide employees with safety equipment (i.e., mouth guards, antibacterial gel, gloves, glasses and/or masks) and a letter stating that they have received and agreed to use the equipment, signed by these employees, letting them know that any outcomes that they may incur by reason of their non-compliance will be their sole responsibility, and document the use of the equipment in the exercise of their work (i.e., by photographs or video).

We also consider it important that companies’ health and safety committees regularly draft minutes certifying that sanitary measures are being applied.

Holland & Knight attorneys have extensive experience in labor matters in a variety of industries. For more information, contact the authors or Holland & Knight's Mexico City office.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact the author or your responsible Holland & Knight lawyer for timely advice.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.

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