CAN COVID-19 CONTACT BE CONSIDERED AS A JOB RISK BY SOCIAL SECURITY?
Just a few weeks ago the Federal Government decreed the long-awaited addition of the auto parts industry so that it could return to what it called a “new normal.”
As a condition for return, a review mechanism was established for the procedures and policies implemented by each company in order to obtain permission from Social Security for the startup. Some of these conditions, however, have established that only 30% of the company’s total employees, per shift, coincide at the plant. We believe, however, that in the face of incipient economic recovery, this percentage could be enough to satisfy current demand and, realistically, at the same time help to reach the long-awaited peak in the contagion curve for Covid19 in Mexico.
We are going to delve into a topic that is becoming relevant now that many of the workers are returning to their work, and in the midst of a cultural problem or possibly political recklessness, it could generate economic and fiscal risks for companies. And it is the fact that the IMSS could determine the causes of contagion of the workers, such as Work Risk, thus raising the quotas that are paid on a monthly basis, by raising the annual premium.
On April 3, 2020, officials Mauricio Hernández Ávila, Director of Economic and Social Benefits, and José David Méndez Santa Cruz, Head of the Unit for Economic Benefits and Health at Work, signed the delivery of the document entitled: “Criteria for SARS-CoV-2 (COVID-19) Coronavirus Cases Classification as Occupational Disease.”
WHAT IS DEFINED AS OCCUPATIONAL DISEASE?
In accordance with the provisions of article 475 of the Federal Labor Law and 43 of the Social Security Law, “it is any pathological state derived from the continued action of a cause that has its origin or reason at work or in the environment in which the worker is forced to provide their services ”. Article 513 of the Federal Labor Law, for its part, contemplates in its section 136, virosis or virus infections.
Therefore, it is possible to recognize the cases of workers infected with SARS-CoV-2 (Covid-19) Coronavirus as a work-related illness by the doctor from the Occupational Health service, in compliance with current regulations.
CLASSIFICATION OF THE RISK OF WORK EXPOSURE TO CORONAVIRUS SARS-COV-2 (COVID-19)
In the aforementioned document, different ‘occupational exposure risks’ are disclosed, which are:
1) Very High Exposure Risk: Health personnel participating directly in the care of patients with suspected or diagnosed Covid-19.
2) High Exposure Risk: Health personnel who do not participate directly in the care of patients with suspected or diagnosed Covid-19.
3) Medium Exposure Risk: personnel who participate directly in the care of the general public and who, due to their activity, are at greater risk of SARS-CoV-2 infection than the general public or at greater risk of coming into contact with materials. and surfaces contaminated with SARS-CoV-2.
Under this classification we can find possible cases that, although not attributable to the company, maybe part of the suppliers of the industries, with the exception of those who carry out these activities directly with their own personnel:
- Preparation and service of food and beverages
- Transportation services
In these two cases, we would recommend that preference be given to having the exclusivity of the workers who carry out these activities so that there are no risks when serving these suppliers to other clients with the same personnel that our company serves.
4) Low Exposure Risk: personnel who do not participate directly in the care of the general public, but who due to their essential activity have a higher risk of SARS-CoV-2 infection than the general public or at greater risk of coming into contact with materials and surfaces contaminated with SARS-CoV-2.
From our point of view, the vast majority of companies in the sector fall under this last exposure risk classification.
CRITERIA TO QUALIFY AS AN OCCUPATIONAL DISEASE
In order to qualify a case of Covid-19 as Occupational Disease it is required:
- That the worker presents the criteria of the confirmed case in phase 1 (until 03/23/20) or suspected or confirmed case in phases 2 and 3 (as of 03/24/20)
- That the worker presents the criterion of occupationally exposed personnel (exposure risk classification Very high, High and Medium)
- That there is a latency period of 1 to 14 days between contact or occupational exposure and the beginning of the clinical picture of the worker, prior to having suspended work.
- Demonstrate that you were exposed to or in the exercise of your duties to someone infected with Covid-19.
AUTOMOTIVE INDUSTRY DECREE
As we mentioned at the beginning, on May 15 an agreement was decreed by which the automotive, mining, and construction industries were added as essential activities . Let us remember that in section V. the following sentence is mentioned: “It is clarified that this is a goodwill agreement; however if it is not complied with, the companies or industries that put the health of their workers at risk will be closed. ”
We must continue with health care in the present emergency. And take special care in gathering the necessary evidence that can demonstrate to the Authority that adequate and necessary protocols are being followed to avoid contagion in the company.
In the same way, employees must be insisted and motivated so that upon their return home they are aware that their actions can not only protect them in their health but also help to keep their work open and positively influence the health of their companions.
Collecting evidence on controls and protocols, in a systematic and routine manner, can serve as a legal defense against an arbitrary closure by the Authority, or determination of an arbitrary risk under doubts about its origin. Unfortunately, in these new situations, each party — including the Government — will fight to be “right”, and only good risk management in this labor-fiscal matter can give the company victory in front of a judge, in a situation extreme.
C.P.C. L Morales*
* The opinions expressed in this article come solely from its author and may differ regarding the interpretation of the laws by the competent authorities.