Update on COVID-19 in Mexico: Additional extraordinary measures and essential activities mandated by the Ministry of Health

The Mexican Ministry of Health has issued a new resolution mandating extraordinary measures aimed at addressing and mitigating the evolving COVID-19 outbreak in Mexico (the “Resolution”). An overview of the key provisions of the Resolution follows:

A.  Effective immediately and up until April 30, only essential activities are to be conducted by private and public parties. For purposes of the Resolution, essential activities include (but are not limited to):

1. Those that are “directly necessary” to address the ongoing sanitary emergency. These include medical and paramedical activities; administrative and supply works supporting Mexico’s National Healthcare System; pharmaceutical industry activities (including retail sales); manufacturing, supply, distribution, research and development activities in the healthcare industry; disposal of biological-infectious hazardous wastes; and sanitization of medical facilities at all levels.
   
   
2. Public safety and national defense.
   
   
3. Activities rendered in the following sectors, businesses and industries (considered by the Resolution as essential to the economy): financial, tax collection, distribution and sale of energy products, fuel and gas production, distribution and sale of purified water, non-alcoholic beverages and food, grocery stores, transportation services, transportation logistics (airports, ports and railways), agricultural, fishing and livestock production, agroindustry, chemical industry, cleaning and sanitization products, hardware stores, courier and shipping, private security, daycares, nursing homes, domestic violence shelters, telecommunications and media, emergency services, funerary services, cold goods storage and chain services, and other activities whose suspension may have irreversible adverse effects on its continuance.
   
   
4. Those that are directly related with social welfare programs implemented by the Mexican government.
   
   
5. Those that are necessary for the conservation, maintenance and repair of critical infrastructure for the production and distribution of essential services (e.g. water, power, gas, fuel, public transportation, basic sanitization and medical infrastructure, among others).
   

B. Essential activities are subject to mandatory social distancing measures and shall not concentrate more than 50 people at a time.

C. The Resolution also urges Mexican residents to continue adopting social distancing measures, with particular emphasis on voluntarily staying home as much as possible.

The Mexican government has repeatedly stated that no mandatory quarantine will be enforced against Mexican residents and the Resolution is consistent with this approach.

The Resolution does not include any express penalties for companies that may fail to follow its provisions. However, breach of the Resolution may, in fact, lead to administrative and/or criminal penalties based on the existing regulation. However, there is room for interpretation.

Unfortunately, the Resolution is not abundantly clear and still leaves some matters to interpretation in addition to the application of fines and sanctions (e.g. the list of essential activities being worded on a non-exhaustive manner). Perhaps most notably, in our opinion, the Resolution does not include an express declaration of a “sanitary contingency,” which would be necessary to trigger certain prohibitions and obligations for employers in Mexico.

As the COVID-19 outbreak continues to evolve, it would be reasonable to expect the Resolution to be supplemented and/or expanded on by supplementary decrees or administrative resolutions in the next few days.

This is the second in Norton Rose Fulbright’s Mexico series on COVID-19 regulation and developments (other articles in this series are available here). This article is not intended to provide (nor shall it be construed as) legal advice. Feel free to reach out to Hernán González, Dante Trevedan or your Norton Rose Fulbright contact for additional updates and specific advice on how the COVID-19 outbreak may impact your deal and/or the performance of contractual or regulatory obligations under Mexican law.

Let us stay connected and safe. We will get through this together.