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Client Alert 18 May. 2020
The alert is available for download here.
Haz clic aquí para descargar un PDF en español.
Mexico remains in Phase 3 of its contingency plan to tackle the pandemic caused by the coronavirus, which was announced by the health authorities on 21 April 2020. On 14 April 2020, there were a total of 42,595 confirmed cases of Covid-19 in Mexico and 4,477 officially confirmed deaths. At the same date, approximately 4,437,442 cases and 302,025 deaths were reported globally.
On 31 March 2020, the Health Secretary issued a Decree (published in the evening edition of the Official Federal Gazette), which established extraordinary measures for addressing the emergency health situation caused by the SAR-Cov2 virus. Article 1(5) of this Decree provided that:
"Once the measures established by this Decree have ended, the Health Secretary, in coordination with the Finance Ministry and the Ministry for Labor and Social Security, will issue guidelines for phasing an orderly and gradual return of labor, economic and social activities, on a region by region basis, for the entire Mexican population;"
Later, on 21 April 2020, the Health Secretary declared the country to be in Phase 3 of its fight against the coronavirus. On the same day, another Decree was published in the Official Federal Gazette which stated that the extraordinary measures will cease to be implemented, as of 18 May 2020, in municipalities across the country that can demonstrate either zero or low transmissions of the SAR-Cov2 virus as at that date.
On 12 May 2020, sitting in its third meeting of the Permanent Session of 2020, the General Health Council determined certain measures for mitigating the spread of the pandemic once the National Social Distancing period expires. The Health Secretary is the relevant State organ responsible for implementing these measures.
Strategy for Reopening Social, Educational and Economic Activities
As the curve of the epidemic starts to flatten, various nations have been implementing a range of different measures designed to ensure a gradual and structured return to normality. On 14 May 2020, the Mexican Health Secretary published a Decree in the Official Federal Gazette setting out its strategy for reopening social, educational and economic activities. The same Decree also introduced a traffic light system for every region as means to assess, on a weekly basis, the extent of the ongoing epidemiological risk with respect to the reopening of activities in each State.
The strategy set out in this Decree was initially raised at a morning media conference (Mañanera) on 13 May 2020, at which the health authorities announced a plan for a return to the “new” normal. It is worth noting that despite the Mexican President referring to this plan as being purely voluntary for States and municipalities which wish to implement it, the plan was described as compulsory in the Official Federal Gazette.
Article 2 of the 13 May Decree establishes a clear strategy for a “gradual, orderly and cautious” reopening, consisting of three consecutive stages.
Stage One, which begins on 18 May 2020, involves reopening activities in municipalities which do not contain cases of Covid-19 and, additionally, do not border any municipalities containing positive Covid-19 cases. Such municipalities are referred to as ‘Municipalities of Hope” (or, in Spanish, Municipios de la Esperanza). According to Article 5 of the 13 May Decree, the following activities can be resumed in these municipalities without any restrictions: schools; movement in public spaces (both closed and open spaces); and labor (both essential and non-essential labor).
For the purposes of Stage One, the Health Secretary intends to issue a statement no later than the day before Step One begins (i.e. on or by 17 May), confirming which municipalities are to be considered as Municipalities of Hope. This statement will also outline various control and prevention measures to be put in place by such municipalities. All information will be made available on the Health Secretary’s website: www.salud.gob.mx.
Stage Two covers the period of 18 May until 30 May 2020. This will be a preparatory stage geared towards the eventual reopening of activities, and will comprise of a series of measures including, inter alia: developing health protocols to ensure that activities can be restarted safely; training people on safety precautions for the workspace; readjusting spaces and production processes; and inserting screens for filtering, sanitizing and maintaining hygiene in the workspace.
Stage Three, the final stage, will begin on 1 June 2020. This stage will introduce the traffic light system as a means for regions to reopen their social, educational and economic activities.
The traffic light system consists of four colours (red, orange, yellow and green) and five categories: (1) public and occupational health measures; (2) labor activities; (3) activities in public spaces; (4) activities of vulnerable people; and (5) schools. With reference to this system, the Health Secretary will announce on a weekly basis the relevant traffic light colour applicable to each State.
For ease of reference, and insofar as it relates to permitted activities, the traffic light system will operate as follows from 1 June:
It should be noted that anyone falling within the category of vulnerable people will only be able to take part in activities – albeit with “ultimate caution” – when the traffic light colour is orange; at which point, specific protocols will be introduced for them.
Furthermore, pursuant to Article 4 of the 14 May Decree, labor activities relating to the following industries will be added to the category of labor activities considered as essential from 1 June: construction; mining; and the production of transportation parts and equipment. Businesses operating in these industries will be required to implement heath and safety guidelines prepared by the Health Secretary throughout Stage Two (i.e. from 18 to 31 May 2020).
The Decree of 14 May will remain in force until such time as the emergency health situation is declared to be over.
One day after this Decree was issued, on 15 May, the Health Secretary issued another Decree which amended the strategy for the reopening of activities in various ways (in particular, by amending sub-sections 2 (ii) and 4 of the 14 May decree).
The main amendment introduced by the 15 May Decree related to the preparation of guidelines which the construction, mining and automobile industries must follow before being allowed to restart their respective activities on 1 June.
In this regard, businesses and industries involved in activities considered as essential are under an obligation to implement the health protocols within the framework of the general guidelines prepared the Mexican health, finance and labor authorities. These protocols must be approved by the relevant authority. The process of preparing, applying and approving such protocols must be carried out during Stage Two of the strategic plan.
Notably, the Decree clarifies that businesses which fail to comply with this obligation, and thus put the health of their employees at risk, shall be eligible for closure or shutting down.
Finally, it is worth noting that Article 1 of the 15 May Decree states that the automobile industry and businesses relating to the exportation of auto parts must comply with protocols required by the relevant country of origin, irrespective of this Decree.
Restarting Activities at State-Level
On 13 May 2020, the Strategy and Media Relations Unit of the Mexican government’s communications department published a list of activities to be restarted at State level. This list includes the various measures that State governors intend to implement as part of the overarching strategy for the reopening of activities, as discussed above.
With reference to Mexico City in particular, no date has been set yet for the reopening of its activities. One of the national newspapers, La Jornada, wrote that the country’s capital will not be restarting its activities on 1 June.
It is important to note that a document entitled “Covid-19: Proposed Plan to Reopen CDMX” (or, in Spanish, Covid-19: Propuesta de Plan de Reapertura en CDMX) has been disseminated. However, Mexico City’s governor has confirmed that this document is still an unofficial draft. As of today, the final version of this Plan has not yet been published.
Attorney advertising. The material contained in this Client Alert is only a general review of the subjects covered and does not constitute legal advice. No legal or business decision should be based on its contents.
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