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Implicaciones Laborales del COVID-19 en México.

El 11 de marzo de 2020, la Organización Mundial de la Salud (“OMS”) emitió la declaratoria de pandemia causada por el brote de coronavirus SARS-COV2, cuya enfermedad se conoce como COVID-19 (“COVID-19”). En México, a la fecha de esta comunicación existen 251 casos confirmados.

De acuerdo con cifras de la Organización Internacional del Trabajo, se estima que esta pandemia ocasionará un aumento del desempleo mundial de entre 5.3 millones (bajo una hipótesis “prudente”) y 24.7 millones (bajo una hipótesis “extrema”). En comparación, la crisis financiera mundial de 2008-2009 aumentó el desempleo mundial en 22 millones.

Al día de hoy, las autoridades sanitarias competentes en nuestro País (esto es, el Presidente de la República, el Consejo de Salubridad General, la Secretaría de Salud y los gobiernos de los Estados y de la Ciudad de México) aún no han emitido una declaratoria formal de contingencia sanitaria respecto al COVID-19. No obstante, algunas de esas autoridades y la sociedad civil en general han promovido y aplicado recomendaciones alineadas con aquellas emitidas por la OMS, con la finalidad de prevenir la propagación y contagio del virus, especialmente el “Distanciamiento Social”.

Particularmente, el pasado viernes 20 de marzo la Secretaría del Trabajo y Previsión Social (“STPS”) en coordinación con la Secretaría de Salud, emitió una “Guía de Acción para los Centros de Trabajo ante el COVID-19” (“Guía”), en la que entre otras cosas contempló la posibilidad para los patrones de implementar diversas “políticas temporales” (como se verá más adelante). Recomendamos revisar la Guía en la siguiente liga:

 https://www.gob.mx/stps/documentos/guia-de- accion-para-los-centros-de-trabajo-ante-el- covid-19

La pandemia del COVID-19 ciertamente ha afectado la actividad productiva y económica del país, lo cual se ve agravado por factores macroeconómicos adicionales que convergen simultáneamente a nivel mundial.

Ante ello, naturalmente surgen inquietudes respecto a las implicaciones laborales en las empresas, y a las alternativas que existen para mitigar sus efectos.

¿Qué puedo hacer ANTES de que se declare formalmente una contingencia sanitaria?

La Ley Federal del Trabajo (“LFT”) prevé ciertos casos y mecanismos específicos para suspender colectivamente las relaciones laborales antes de que se declare una contingencia sanitaria. El efecto de dicha medida suspendería temporalmente la obligación de los trabajadores de prestar sus servicios, así como la obligación de los patrones de pagar los salarios. Sin embargo, para ello es necesario que los patrones den aviso y soliciten la aprobación de la autoridad competente, lo cual difícilmente podrá hacerse en estos momentos considerando que, paradójicamente, la mayoría de las Juntas de Conciliación y Arbitraje en el País han suspendido labores.

No obstante, existen algunas alternativas para reducir los costos laborales de las empresas ante la pandemia del COVID-19, y evitar así el cierre definitivo de fuentes de empleo en el País.

Dichas alternativas incluyen “paros técnicos”, esquemas de reducción de jornadas, jornadas flexibles, trabajo remoto bajo la modalidad “Home Office”, disfrute anticipado de días de vacaciones, entre otros.

La aplicabilidad y eficacia de cada una de las alternativas mencionadas depende de la naturaleza de las actividades productivas de las empresas y de las funciones específicas de cada puesto, por lo que es recomendable hacer una evaluación antes de implementarse.

Además, considerando que en México los patrones no pueden modificar unilateralmente las condiciones de trabajo de sus trabajadores, cualquier medida preventiva de esta naturaleza deberá (i) convenirse expresamente con éstos; y (ii) formalizarse por escrito. En estos casos, los aspectos prácticos y de logística al momento de preparar y comunicar el mensaje a los trabajadores es fundamental, por lo que recomendamos hacer una planeación adecuada.

Algunas de estas alternativas han sido confirmadas por la propia STPS en la Guía, particularmente en el punto 5.5.

Una vez que se declare formalmente la suspensión de labores por contingencia sanitaria…

 

La fracción VII del Artículo 427 de la LFT establece como causa de suspensión temporal de las relaciones de trabajo la que declare la autoridad sanitaria competente en los casos de contingencia sanitaria.

Para ello, los patrones no requieren de aprobación o autorización de la autoridad. No obstante, conforme a la fracción IV del Artículo 429 de la LFT, los patrones tendrán la obligación de pagar a sus trabajadores una indemnización equivalente a un día de salario mínimo general por cada día que dure la suspensión, sin que pueda exceder de 1 mes.

El salario mínimo general vigente es de $185.16 M.N. en la Zona Libre de la Frontera Norte, y de $123.22 M.N. en el resto del País.

Cabe señalar que la LFT no dispone en forma específica qué sucedería en caso de que la suspensión de labores por contingencia sanitaria dure más de 1 mes.

No obstante, desde nuestra perspectiva, el pago de la indemnización de 1 día de salario mínimo por cada día de suspensión constituye una excepción temporal a la regla general aplicable a las suspensiones de relaciones de trabajo, consistente en la suspensión de las obligaciones de prestar el servicio, y de pagar el salario. Por ello, una vez vencido el plazo de la excepción (1 mes), debe prevalecer la regla general descrita y, por ende, los patrones no estarían obligados a continuar pagando la indemnización, ni los salarios.

En caso de requerir información adicional, con gusto los atenderemos.

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