February 23, 2021

COVID-19 as an Occupational Illness under Mexican Law

By Esteban Gómez Aguado and Daniel Ramírez

In a December 15, 2020 session of the Technical Council of the Mexican Social Security Institute (“IMSS”), the Council issued decree number ACDO.AS2.HCT.151220/340.P.DPES  authorizing the Mexican Department of Economic and Social Benefits “…to implement a proactive assessment strategy as to the work-related risks of employees of related companies who died or were left with lingering symptoms from serious cases of COVID-19, during the (pandemic) emergency period…” (the “Strategy”).  The Strategy consists of an initiative by IMSS’ institutional services to specify the actions and criteria to be considered in classifying COVID-19 cases as an occupational illness.  

The Strategy implements criteria to “prequalify” serious cases, those being cases with lingering symptoms and those that resulted in death due to COVID-19.  Both the Mexican Social Security Law and IMSS Medical Benefits Regulations provide that in order for work-related illnesses such as COVID-19 to qualify as a work risk (work-related illness), occupational health services must demonstrate the existence of a “causal connection” between the illness and the work or the work environment. Accordingly, the existence of a significant number of COVID-19 infections in the workplace must be demonstrated. 

Accordingly, the new criteria will affect mainly those companies which engage in activities with high or very high exposure and risk of contagion of COVID-19 such as: medical services, paramedic services, funeral transportation services, medical social assistance services, burial services and related activities, as well as companies that provide auxiliary services to those above.  

As relates to the “causal connection” between the illness and work, it is impossible to determine with certainty the exact time and place in which a worker was infected with COVID-19 and, even more so, when employers have implemented hygiene, prevention and safety measures necessary to prevent the spread of COVID-19 (e.g. personal protective equipment, social distancing, hand washing, etc.). In this regard, the IMSS criteria indicate that the employer must demonstrate that the employee’s work related activities did not expose him to contagion, or that the employee did not work during the fourteen days prior to the start of the temporary incapacity for work.   In conclusion, it will be necessary to identify cases of temporary incapacity for work due to respiratory ailments in order to follow up accordingly and decide whether they will be included by companies in their Annual Declarations for the Determination of the Work Risk Insurance Premium for the period of 2021-2022.