By: Diego Rodrigo Santos Garmilla
De la Vega & Martínez Rojas, S.C.
In its Article 513, the Federal Labor Law includes a table of occupational diseases and of the evaluation of permanent disabilities resulting from occupational hazards.
As a result of the measures taken at a global level, as well as by different levels within the government and by private persons or entities to protect workers from this epidemic, the Mexican Social Security Institute (IMSS) determined that the disease caused by Coronavirus (Covid-19) must be considered as an Occupational Disease; understanding this as “the pathologic state deriving from the continued action of a cause that has its origin or motive in the work performed or in the environment in which the worker has the obligation of providing his services”.
Deriving from the current outlook at an international level, the coverage of this illness by social security becomes a significant and necessary strategy for the security of all workers who might be exposed to the infection in their work environment or outside of it given that, at this time, there are no known means of controlling this disease.
Coronavirus… an occupational disease?
Following this line of reasoning, the IMSS considered that the aforementioned disease, being a virus, must be catalogued as a “Virosis” in line with section Number 136 of Article 513 of the Federal Labor Law; the medical diagnosis can only classify this disease once the person shows the symptoms or they are confirmed by means of a lab test.
It is important to note that the IMSS determined that there are different levels of exposure to Coronavirus, classified from “Very high” to “Low” risk, depending on the repeated or extended contact with sources of possible contagion as a result of the tasks performed by a worker.
As previously mentioned, in its Article 513, the Federal Labor Law includes a table of occupational diseases and of the evaluation of permanent disabilities resulting from occupational hazards. The aforementioned table is numerus apertus, that is, it is a purely indicative table and, therefore, while Coronavirus is not expressly mentioned in it, it can be classified within a disease category or by itself, considered as an Occupational Disease.
Nevertheless, as maintained by the Federal Supreme Court of Justice, in order to determine whether a disease is an occupational disease or not, it isn’t sufficient for it to be included in the catalogue of diseases, it requires the existence of a cause that supports that said disease could be contracted within the work center or as a result of the tasks being performed, that is, the expert medical diagnosis cannot, by itself, actualize the assumption that it is an occupational disease, as it is necessary to prove that the disease was acquired due to exposure within the work center, or outside of it, but as the result of the activities carried out by a person.
However, as mentioned by several professionals, the risk of having the disease classified as an Occupational Disease is that of increasing the Companies’ Occupational Hazard Premium and, therefore, it should not be catalogued as an Occupational Disease given that this disease is the result of a worldwide pandemic and, in consequence, it must be classified as a General Disease for all applicable legal purposes.
Notwithstanding the above, we support the perspective of the Mexican Social Security Institute given that, in accordance with the provisions of labor and social security legislation, as well as the criteria issued by the courts, it is necessary to evaluate each specific case with the objective of determining whether there was a link between the cause and the effect in order for the employer to be affected by an increase in the Hazard Premium, given that it is necessary to determine whether the person in question contracted the disease as a consequence of the performance of his duties, which is hard to determine, particularly in the case of those jobs or professions which entail a medium or low risk level (in accordance to the provisions established by the IMSS).
The degree of risk determines the premium
Additionally, in regard to the procedure for determining the premium for work hazard insurance, it is important to mention that diagnoses issued by doctors affiliated with the IMSS, in themselves, do not constitute definitive actions in administrative matters, since their issuance itself, regardless of their content and scope, does not infringe upon the employer’s legal sphere.
While these diagnoses could have an effect on the company’s accident rate, on which the increase of the degree of risk and the premium being quoted would be made to depend, this possibility constitutes a future and unforeseeable action which cannot be considered as detrimental to the interests of the employer at this time since, for the materialization of this possible consequence, it will be necessary to wait for the annual review on the accident rate and the employer can object to its result, which will open the possibility for the IMSS to, among other possibilities, rectify the classification of the premium.
The above without prejudging the way in which the authority will act given that, unfortunately, since the beginning of the pandemic and during the pandemic itself, it has acted erratically, with agreements, communications and other actions that seek to distort previously established labor and social security legislation, as in the case of the suspension of work which was fully provided for in case of health contingencies, which this authority interpreted, so to say, freely, perhaps with a noble intention, which is the benefit of workers, but forgetting that both the workers and we, ourselves, are dependent on an employer who, in the absence of income cannot continue conducting its activities ad perpetuam and, in the absence of companies, there will be no workers.