Mexico: Increased enforcement of notification obligations by health authorities in manufacturing sites of all industries, regarding operations, physician rooms and dining rooms

In brief

There is a clear increase of enforcement actions taken by health authorities, both at the Federal and State level, where authorities are verifying if both physician and dining rooms at manufacturing plants, from all industries, have been properly supported by the applicable Notices of Operation. At the same time, many local health authorities are unduly requesting companies to have a Notice of Operation for their manufacturing operations. Companies shall comply the former and be prepared to reject the latter in order to prevent disruptions of operations and future sanctions. 


Contents

Recommended actions 

  1. Manufacturing plants shall review if they have properly: 
    1. Filed a Notice of Operation for the physician room they have opened at the plant, and
    2. Filed a Notice of Operation for the dining room they have opened at the site.
  2. At the same time, companies shall be prepared to reject any demand to:
    1. File a Notice Operations for their manufacturing activities, if their activities are not explicitly listed in an official list published by the Ministry of Health. 

In more detail 

Although certain notifications obligations under the health law regime have existed for a long time, they may not have been actively enforced at the local level, facilitating that for some companies, these obligations may have gone off their radar.

However, the COVID-19 pandemic and the extraordinary measures adopted by different authorities, have resulted in several waves of inspection visits in all over the country. 

These waves took place both early on, with the first adopted measures, when labor and health authorities started inspection visits to verify the essentiality of operations, and later on when the authorities were mandated the verification of compliance with either (i) the Strategy for Reopening Activities1, and (ii) the Specific Technical Guidelines for Resuming Activities2.

During those visits, it has become a trend to find out that many manufacturing plants have not filed or updated the applicable Notices of Operation for the physician rooms and dining rooms that they have operated for long. 

To recall, having a physician room at the manufacturing site derives from an obligation foreseen under the labor law regime, for places of work that have more than 100 employees. In contrast, having a dining room at the plant for employees is not a legal obligation, but it is generally requested in collective agreements and is accepted as it offers tax benefits. 

In fact, during inspection visits, authorities are verifying compliance not only with the aforementioned Notices of Operation, but also with two applicable Technical Standards: (i) NOM-005-SSA3-2018 on infrastructure and equipment requirements for physician rooms, and (ii) NOM-251-SSA1-2009 on hygiene requirements for the preparation of food and beverages. However, the most common irregularity is not having the Notice of Operation. 

At the same time, health authorities, particularly local ones, have been unduly requiring that companies have a Notice of Operations for their manufacturing activities even if that is not applicable. Companies should be ready to defend and reject this, on the legal bases that only those activities that are explicitly included in an official list published by the Ministry of Health, require such notification. This is often referred to as the "List of SCIAN Codes". 

The Healthcare & Life Sciences Group at Baker McKenzie can gladly support companies, both before and during these inspection visits, to comply with the applicable Notices of Operation for physician and dining rooms, as well as to articulate a defense against unduly requests to have one when not applicable.

#LifeSciencesBakerMcKenzie


1 On May 14, 2020, the Ministry of Health published in the Official Gazette of the Federation (“DOF"), the Agreement establishing a strategy for the reopening of social, educational and economic activities, as well as a system of traffic light by regions to weekly assess the epidemiological risk related to the reopening of activities in each federal entity, as well as extraordinary actions.

2 On May 29, 2020, the Ministries of Health, Economy, and Labor; as well as the Mexican Institute of Social Security, jointly published in the DOF the Agreement establishing the Specific Technical Guidelines for the Reopening of Economic Activities.


Copyright © 2022 Baker & McKenzie. All rights reserved. Ownership: This documentation and content (Content) is a proprietary resource owned exclusively by Baker McKenzie (meaning Baker & McKenzie International and its member firms). The Content is protected under international copyright conventions. Use of this Content does not of itself create a contractual relationship, nor any attorney/client relationship, between Baker McKenzie and any person. Non-reliance and exclusion: All Content is for informational purposes only and may not reflect the most current legal and regulatory developments. All summaries of the laws, regulations and practice are subject to change. The Content is not offered as legal or professional advice for any specific matter. It is not intended to be a substitute for reference to (and compliance with) the detailed provisions of applicable laws, rules, regulations or forms. Legal advice should always be sought before taking any action or refraining from taking any action based on any Content. Baker McKenzie and the editors and the contributing authors do not guarantee the accuracy of the Content and expressly disclaim any and all liability to any person in respect of the consequences of anything done or permitted to be done or omitted to be done wholly or partly in reliance upon the whole or any part of the Content. The Content may contain links to external websites and external websites may link to the Content. Baker McKenzie is not responsible for the content or operation of any such external sites and disclaims all liability, howsoever occurring, in respect of the content or operation of any such external websites. Attorney Advertising: This Content may qualify as “Attorney Advertising” requiring notice in some jurisdictions. To the extent that this Content may qualify as Attorney Advertising, PRIOR RESULTS DO NOT GUARANTEE A SIMILAR OUTCOME. Reproduction: Reproduction of reasonable portions of the Content is permitted provided that (i) such reproductions are made available free of charge and for non-commercial purposes, (ii) such reproductions are properly attributed to Baker McKenzie, (iii) the portion of the Content being reproduced is not altered or made available in a manner that modifies the Content or presents the Content being reproduced in a false light and (iv) notice is made to the disclaimers included on the Content. The permission to re-copy does not allow for incorporation of any substantial portion of the Content in any work or publication, whether in hard copy, electronic or any other form or for commercial purposes.