Lic. Carlos Eduardo Bonilla
COMPANIES THAT CONTINUE WITH THEIR OPERATIONS, PERFORMING NON-ESSENTIAL ACTIVITIES, COULD FACE LEGAL
On March 30, 2020, a decree was published in the Official Gazette of the Federation, through which a health emergency was declared, due to force majeure, derived from the epidemic
the federal authority came into force, temporarily modifying the manner in which the operations of companies are performed throughout the Mexican Republic. These provisions left a host of
questions in the minds of all business, of which one of them is of vital importance: What legal risks exist if I continue performing activities that are not essential?
disease generated by the COVID-19 virus. On March 31, 2020, another decree was published in the Official Gazette of the Federation, through which the suspension of non-essential activities was ordered from March 30 through April 30, 2020, indicating which activities are considered essential. Finally, in a decree published on April 06, 2020 in the Official Gazette of the Federation, it was determined that the companies which suspension may have irreversible effects on their operation are those involved in the production of steel, cement and glass only, as well as the information technology services that guarantee the continuity of computer systems in the public, private and social sectors.
CURRENT OUTLOOK FOR COMPANIES WITH NON ESSENTIAL ACTIVITIES:
Taking into consideration that non-essential activities are suspended, companies that perform non-essential activities or that do not produce steel, cement or glass should suspend operations. Since “essential activities” is a very vague term, if you are not sure if the activity performed by your company is “essential”, that a formal ruling be requested from the Federal authorities. The application should state the production process, the materials used, the number of employees that are hired, the sanitary and health measures that are used at the ingress, stay and egress from the work center, and letters from customers that prove that the activity is essential should be attached.
Closure of the source of work: In the event of a definitive closure, all authorizations granted to the Company will no longer be valid (Article 426 General Health Law).
Fine: From 6,000 to 12,000 times the Unit of Measure and Update - From $ 521,280 pesos to $ 1,042,560 pesos (Articles 411 and 421 General Health Law), and / or from 50 to 5000 times the Unit of Measure and Update - From $ 4,344 pesos to $ 434,400 pesos (Article 1002 of the Federal Labor Law). Note.- UMA value: $ 86.88 pesos.
Criminal liability in the event that an employee is infected, or even when there is no infected employee, there may be criminal liability punishable with a prison sentence ranging from 6 months to 4 years, for the crime of Infection Hazard. This crime is easily committed if the Employer and/or any its officers, managers or directors decide to continue operations, thus jeopardizing the health of employees, knowing that they had to stop work and operations.
Civil liability in the event that any employees is infected with COVID-19 as a consequence of continuing to work at the facilities of the company, the company may be forced to pay damages and loss profits as indemnification of the damage caused by acting illegally (Articles 1795, 1800 and 1803 of the Civil Code of the State of Chihuahua).
It is important to consider all the provisions of the decrees issued by the federal authority regarding the extraordinary situation caused by the COVID 19 outbreak, in order not to be subject to administrative sanctions or even civil or criminal liability of any type.
At Toulet & Gottfried we can advise you on the proper course of action for your company.
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