Background

In Mexico, the first case of COVID-19 appeared on February 27, 2020.  Since that time, its transmission through community spread has grown exponentially.  If the virus continues to spread at the current rate, the available medical facilities in Mexico will be stressed and eventually overloaded with critical patients.

Considering that the risk of community spread of COVID-19 through person-to-person contact is magnified when people congregate together, the Mexican government, like many of its global counterparts, implemented measures in order to protect, preserve, and promote the general health, safety, and welfare of the people in Mexico.

On  March 30, 2020, a decree was published in the Federal Official Gazette (“DOF”) declaring a health emergency due to force majeure. A day later, on March 31, 2020, a decree establishing extraordinary actions to address the health emergency generated by COVID-19 was published in the DOF (as it was amended by the explanatory note dated April 3, 2020, the “Decree”). On April 6, 2020, a decree establishing the technical guidelines related to some of the activities described in the Decree was published in the DOF (the “Guidelines”).

Suspension of Non-Essential Activities

Pursuant to the Decree and in order to mitigate the spread and transmission of COVID-19, the Federal government, through the Ministry of Health, ordered the immediate suspension of activities and businesses considered “non-essential.” The initial term of said suspension is from March 30 to April 30, 2020 (the “Effective Period”). All non-essential businesses, services, and activities are prohibited during the Effective Period.

Although the Decree does not define what is considered an essential activity, it specifies a list of the activities that are considered essential, which includes:

  1. Activities directly necessary to attend to the health emergency, such as the work activities of the medical, paramedical, administrative and support branches throughout the National Health System. Also, activities of those who participate in its supply and services, among which the pharmaceutical sector stands out, both in its production and its distribution (pharmacies); the manufacture of supplies, medical equipment and technologies for health care; those involved in the proper disposal of biological-infectious hazardous waste, as well as cleaning and sanitizing medical units at different levels of care.
  2. Activities relating to public safety and citizen protection; in defense of national integrity and sovereignty; the procurement and promotion of justice; as well as legislative activity at the federal and state levels.
  3. Activities of key sectors of the economy: financial, tax collection, distribution and sale of energy, gas and petrol stations, generation and distribution of drinking water, food and non-alcoholic beverages industry, food markets, supermarkets, shops self-service, grocery and prepared food sales; passenger and cargo transportation services; agricultural, fishing and livestock production, agribusiness, chemical industry, cleaning products; hardware stores, courier services[1], guards in private security tasks; day-care centers and nurseries, asylums and stays for the elderly, shelters and care centers for women victims of violence, their daughters and sons; telecommunications and information media; private emergency services, burial services, storage services and cold chain of essential supplies; logistics (airports, ports and railways), as well as activities whose suspension may have irreversible effects for its continuation. According to the Guidelines, the activities whose suspension may have irreversible effects for its continuation are the following: steel, cement and glass production companies, as well as information technology services that guarantee the continuity of computer systems in the private, public and social sectors.
  4. Activities directly related to the operation of government social programs.
  5. Activities necessary for the conservation, maintenance and repair of critical infrastructure that ensures the production and distribution of essential services; namely: drinking water, electricity, gas, oil, gasoline, jet fuel, basic sanitation, public transportation, hospital and medical infrastructure, among others that could be listed in this category. This list is merely illustrative; therefore, it should be analyzed on a case-by-case basis what other activities not mentioned here can be considered essential to ensure the production and distribution of essential services.

Non-essential businesses, services, and activities will include businesses and activities that are not listed in the Decree’s list. It is not clear whether the manufacture of necessary inputs so that the essential activities can continue to operate can also be considered as essential activities, even if not listed as such. This should be analyzed on a case-by-case basis.

Among the issues that have generated some concerns for Mexican companies regarding the scope of the above-mentioned restriction is the inability to comply with certain obligations required by law. For example, Mexican law provides that Mexican companies shall hold an annual shareholders’ meeting on or before April 30 of each year. Due to the restrictions imposed by the Decree, and considering that holding shareholders’ meetings are not explicitly listed as an essential activity, although not bound, Mexican companies could analyze the convenience of holding such shareholders’ meetings by electronic means. These cases would require further analysis on the merits and shall be discussed on a case by case basis.

The steel, cement and glass production companies are required to maintain a minimum activity that avoids irreversible effects in their operation. To do so, they should have informed the Ministry of Economy (via email) of the total number of workers that are essential for this purpose.
Those steel, cement and glass production companies that have current contracts with the Federal Government will continue activities that allow them to fulfill short-term commitments exclusively for the Dos Bocas Refinery, Tren Maya, Felipe Ángeles Airport and the Transismic Corridor projects; as well as existing contracts considered essential for Petróleos Mexicanos and the Federal Electricity Commission.

Coal mines and coal distribution companies shall maintain a minimum activity that meets the demand of the Federal Electricity Commission. For this, they should have informed the Ministry of Economy of the total number of workers that is essential for this purpose and must comply with the measures indicated in the following section.

Health and Safety Measures to be Observed in Places Where Essential Activities are Carried Out

The Decree establishes that in all the places where the essential activities mentioned above are carried out, the following practices must be observed, on a mandatory basis:

  1. No meetings or congregations of more than 50 people may be held;
  2. People should wash their hands frequently;
  3. People should sneeze or cough covering their nose and mouth with a disposable tissue or with the forearm;
  4. People may not greet with a kiss, a handshake or a hug, and
  5. All other healthy distance measures issued by the Ministry of Health should be incorporated.

The Decree does not establish the health measures to be adopted by the persons that do not perform essential activities; however, it is critical that everyone engage in all available health measures, including handwashing, maintaining a safe distance of at least six feet from other people in public, isolating themselves if ill, only purchasing supplies necessary for personal use, and remaining calm.

Shelter at Home Mandated

It is critical that all persons located in Mexico, whether residents or visitors, shelter at home, unless providing an essential service, seeking health care, engaging in life-sustaining activities, or activities that support life-sustaining activities. For this reason, the Decree establishes that the population residing in the Mexican territory (including the people that arrive from abroad) that does not participate in essential work activities must stay in their homes until April 30, 2020. Until that date, all persons shall remain in their place of residence and shall not be or remain in public places.

This mandate is not a curfew; however, it will be strictly applied to anyone over 60 years of age, a state of pregnancy or an immediate puerperium, or with a diagnosis of hypertension, diabetes mellitus, chronic heart or lung disease, immunosuppression (acquired or provoked), kidney or liver insufficiency, regardless of whether his or her work is considered essential.

Ending Date

Once the Effective Period of the measures established in the Decree has ended, the Ministry of Health, in coordination with the Ministry of Economy and the Ministry of Labor and Social Security, will issue the guidelines for a return, ordered, staggered and regionalized to the labor, economic and social activities of the entire population in Mexico.

Surveillance and Enforcement

Article 4 of the Mexican Constitution establishes health as a human right and provides the basis for the government to enact provisions regarding, among other things, health services and medical attention. Therefore, the Mexican government must guarantee such fundamental rights to all its citizens, primarily by providing access to public health services such as public hospitals.

The main law regulating these matters is the General Health Law and its implementing regulations, which establish health services as a matter of public policy and interest subject to sanitary control.

The authorities in charge of health and medical-related services include the President of Mexico, the General Health Board, the Ministry of Health and state governments, among others.

Therefore, even though the Decree is silent on who will enforce it, the Ministry of Health has such capacity. The Ministry of Labor and Social Security also has some authority to do so under its workplace safety and health programs.

Additionally, most states have adopted similar local decrees by which they have assumed authority to enforce the suspension of activities other than the ones considered essential. These include Mexico City and the State of Mexico.

Further measures may be taken by the Federal Government on this regard, depending on the level of the emergency.

Administrative and Judicial Remedies

Any party affected by an unfavorable decision issued by the competent health authorities may, as a general rule:

  1. File a reconsideration remedy, also known as an administrative appeal. This remedy should be filed before the same authority that issued the challenged resolution.
  2. File a nullity trial before the Federal Court for Administrative Law.
  3. File an amparo trial before a Federal District Court or before a Federal Collegiate Court. If the Mexican Supreme Court considers that a case is highly relevant for the country and involves constitutional matters, it can attract the amparo

These three alternatives present specific challenges and requirements, and their filing will significantly depend on the nature of the resolution, imposition of fines and penalties, and particular issues of the resolution in question.

Disclaimers

This guide is not intended to be a legal opinion, but rather discusses and analyzes some of the measures taken by the Mexican Federal Government regarding Covid-19.

The discussions set forth above are subject to change and qualifications by reason of change of law, facts and circumstances, lapse of time and other similar matters. The Firm has not undertaken an obligation to update this guide for changes in facts, circumstances, laws or otherwise.

 

[1] These include electronic commerce platforms and companies, as long as they comply with the health measures indicated in section 3 of this note.

***

If you wish to receive periodic updates on this or other topics related to the pandemic, you can be added to our COVID-19 “Special Interest” mailing list by subscribing here. For any other legal questions related to this pandemic, please contact the Firm’s COVID-19 Core Response Team at FW-SIG-COVID-19-Core-Response-Team@mayerbrown.com.

The post Measures Taken by the Mexican Federal Government to Protect, Preserve, and Promote the General Health, Safety, and Welfare of the People in Mexico appeared first on COVID-19 Response Blog.