On March 31, the agreement of the Health Secretary with the measures to face the health emergency generated by the SARS-CoV2 virus (Covid-19) was published in the Official Gazette. It is the most comprehensive response from federal authorities. Therefore it is important to understand what the agreement contains and what its scope is. Much of what will be done in Mexico in the coming and defining days will be based on its rules.
The agreement is called "extraordinary actions to address the health emergency due to force majeure" by the statement made by the General Health Council on March 30. Denominations are not neutral. With the expression "force majeure", the federal government seeks to prevent the pandemic from being considered a "health contingency" in terms of articles 42 bis and 427, VII, of the Federal Labor Law. This, because it would imply the temporary suspension of labor relations and pay differently to workers (art. 429, IV). Given the ambiguity generated, we will see how the bosses assume them for the already damaged formal employment in the country.
The best way to understand the content of extraordinary actions is to identify their main axes. Regarding the storm, the regulations issued will last until April 30. The only point to note is that even when there is a fixed termination day, it is expected that the return to work, economic and social activities will be done in an orderly, staggered and regionalized manner, in accordance with the guidelines issued by the Ministry of Health in coordination with those of Labor and Economy. This will require distinguishing between the date of termination of the emergency and the date of effective start of activities.
The second has to do with the subjects to whom the agreements are addressed. In principle, to all of us who inhabit the national territory. The general population is encouraged, nothing more, to take shelter at home during the indicated period. For people over 60 years of age or with certain types of conditions (diabetes, obesity, hypertension, heart or respiratory failure, etc.), strict home protection is provided. Due to the way in which the agreement is legally constructed, there is no legal obligation as such, since there are no penalties for non-compliance. It is, it must be said clearly, exhortations to the general population and reinforced exhortations to people at risk.
Within the personal axis itself, are the determinations for those who carry out certain types of activities. Beyond the linguistic forms used, it is evident that it is not regulated to the activities considered in themselves, but the behaviors of those who carry them out. The latter under the modalities of essential and non-essential. The essential ones are those expressly indicated in this way and, by exclusion, the rest are not. The essentials are classified into five main categories. First, those necessary to attend to the emergency itself (labor from the medical and paramedical branch; support for the health system, its supply, services and supplies; manufacture of supplies, equipment and technologies; waste disposal and sanitation, notably). Second, public security and protection of national citizenship, sovereignty and defense; law enforcement and justice; and federal and local legislative functions. Third, those of the fundamental sectors of the economy (financial, collection, energy, drinking water, food, self-service stores and markets, children's rooms, private security, telecommunications, the media and funeral services, for example). Fourth, those related to government social programs. Fifth, those necessary for the conservation and repair of the infrastructure of essential services (drinking water, electricity or gas, for example). Due to the aforementioned exclusion, the activities not indicated in the extensive and confusing list above will be non-essential.
What does it imply that an activity is essential or not? That those who work in one or the other will have, or not, the obligation (in the terms already indicated) to continue or suspend it. Those in the financial or food industries, for example, will not be able to do so; Those who are dedicated to tailoring or the production of office supplies, yes. Regardless of these differences, the agreement does not make clear the legal consequences, not moral or social, for those who continue to work in non-essential activities or, vice versa, those who are not in essential activities. However, unlike individuals, there are greater coercive elements in the administrative provisions that regulate business. The Federal Consumer Attorney's Office (Profeco), the Banking Commission or the Secretariats of Economy or Labor, for example, have better means to try to close or fine establishments that in their opinion do not comply with what is ordered in the agreement.
The two axes of the agreement generate intersections that should be clarified. The first is the relationship between nonessential activities and people with strict age or risk restrictions. Here the second condition prevails over the first, so they must be protected. The second has to do with people who, while at risk, carry out an essential activity. The agreement also provides that they must be kept safe. Finally, those who, while not at risk, carry out an essential activity, can voluntarily decide whether to go to work.
In another article, the agreement modifies the internal regulations of the General Health Council in order to incorporate as regular members the secretaries of the Interior, Foreign Relations, National Defense, Navy, Security and Citizen Protection and Labor and Social Security. As such determination is understandable, the manner in which it was made is contrary to law. The appropriate means must have been the reform of the internal regulations by the President of Mexico.
Exposed the essential elements of the agreement, my judgment is twofold. On the one hand, I celebrate its broadcast. The delay in the adoption of legal measures by the federal government caused various governors and municipal presidents to issue those they deemed appropriate, breaking the unity of health action that the pandemic requires. The actions of the Health Secretary reintegrates him as the highest health authority in the country and places him in a place that he should never have lost. On the other hand and materially, the agreement is flawed. I do not suppose that through it all the public actions that the pandemic requires should be confronted or ordered. Financial, commercial or economic questions, for example, are out of your possibilities. However, it did have to attend to health aspects in all their dimensions and with much greater precision. If the pandemic was finally to be legalized, it should have been done in such a way as to remove as many ambiguities as possible. There are expressions so lax that they will require interpretations that, due to the same conditions of the receipt and suspension of work, the authorities will not be able to provide. On the other hand, the imperative conditions of the agreement are by no means clear. Finally, there are serious omissions to clarify serious and pressing problems, such as the relationship between the "health emergency" and the "health contingency" referred to in the Federal Labor Law.
Unfortunately, in the next few days, the social, economic and political difficulties derived from the pandemic will have to increase. Legal regulations will be one of the few means we will have to contend with them. Its quality and opportunity must be adequate to the referential frameworks of the law itself and to the social conditions that arise. Standards are not mere formalities. They are means of social organization. We have to prevent the health crisis from being followed by a social crisis. Achieving this depends, to a great extent, on the good construction of the rules that will try to regulate everyone's behavior in the very complicated situation that is yet to come.
@JRCossio
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