April 27, 2020 / COVID-19 / Health
As a consequence of the health emergency due to the SARS-CoV-2 virus disease epidemic (hereinafter, “COVID-19”), the measures that employers must comply, in accordance with the provisions of Mexican law were declared by the General Health Council and published in the Federal Official Gazette last Monday, March 30, to ensure the safety of all medical personnel working in hospitals during such emergency.
If employers do not provide adequate equipment and instruments to safeguard the health and integrity of both medical personnel and patients, there are possible risks that employers may incur if they force or demand medical personnel to perform the work for which they were hired.
What are the obligations of the employers regarding their workers?
The Regulations of the General Health Law in Health Care Service Provision matters (hereinafter the “Regulation”) state that the facilities where medical care is provided must comply with the provisions of the relevant Technical Standards and must have adequate material and sufficient and suitable personnel.
In addition, Mexican Official Standard NOM-017-STPS-2008 states that employers must analyze and identify the occupational risks to which workers are exposed for each job and area of the workplace. The employer must provide workers with personal protective equipment that complies with the following conditions:
- Equipment that mitigates worker exposure to risk agents;
- Equipment for personal use, if applicable;
- Equipment that fits the physical characteristics of the workers; and
- Equipment that has the manufacturer use, revision, replacement, cleaning, limitations, maintenance, safekeeping, and final disposal indications, instructions, or procedures.
Pursuant to the foregoing and as a consequence of the current situation recognized by the health emergency, all establishments where health services are provided are considered places with an extremely high occupational risk. Therefore, employers must provide personnel with sufficient and suitable equipment and materials necessary to mitigate the contagion risk they are exposed to.
The Agreement establishing extraordinary actions to handle the health emergency generated by COVID-19 (hereinafter the “Agreement”) was published in the Federal Official Gazette on March 31, 2020, and established, among other measures, strict home protection to any person with the following characteristics:
- People older than 60 (sixty) years;
- Pregnant or in immediate postpartum period; and
- People diagnosed with arterial hypertension, diabetes mellitus, chronic heart or lung disease, immunosuppression (acquired or provoked), renal or hepatic insufficiency, regardless of whether their work activity is considered essential or not.
Pursuant to the foregoing, if any hospital employee fits within the aforementioned cases described in this Agreement, the employer must allow them to be sheltered at home.
What are the possible penalties to which the employer may be subject?
In case the employer does not comply with the regulations, the employer may be sanctioned in the following ways.
The Regulation, Article 245, mentions that it will be imposed a penalty from 200-500 (two to five hundred) Units of Measurement and Actualization on the person responsible for an establishment that provides medical care services, in which it is not sufficient and suitable personnel or adequate equipment, material, or premises in accordance with the services provided. If recurrence or deficiencies continue, a temporary closure will be imposed, which will be definitive if the violation remains when the service is resumed.
In case the employer does not comply with the Federal Labor Law regarding safety, health, and environmental conditions at work to prevent accidents and occupational diseases, or with the Official Mexican Standards issued by the Ministry of Labor and Welfare (hereinafter “STPS”), there is a risk that any worker may file a complaint before the STPS, which may sanction the employer after an inspection.
What are the rights of physicians or healthcare personnel?
Regardless of the rights of the workers already mentioned in the relevant regulations, the Ministry of Health, in conjunction with the National Medical Arbitration Commission, has elaborated 10 (ten) fundamental rights for health care workers:
- Practice the profession freely, without pressure, and under equal interprofessional conditions.
- Work in appropriate and safe facilities that ensure personal and professional safety and integrity.
- Have the necessary resources for the optimal performance of their functions.
- Abstain from ensuring results and providing information beyond their professional and occupational competence.
- Receive proper and respectful treatment from patients and their families and the personnel related to their work, regardless of their hierarchical level.
- Have access to professional updating with equal opportunities for personal development and research and teaching activities according to their profession and competencies.
- Associate freely to promote their professional interests.
- Protect their professional prestige and interests.
- Receive timely and full compensation for provided services.
In case the employer violates any of the rights of health care workers, the employee may contact the National Medical Arbitration Commission in order to file a complaint to enforce their rights.