Occupational Safety and Health Laws [Section 5]

Occupational Safety and Health Laws
in the United States, Mexico and Canada: An Overview

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In content, Mexico's workplace safety and health law is entirely federal.⁽²⁹²⁾ The Constitution authorizes the Congress to enact laws,⁽²⁹³⁾ establishes law-making procedures,⁽²⁹⁴⁾ and empowers the President to issue implementing regulations.⁽²⁹⁵⁾

In enforcement, responsibility is exclusively federal in 21 economic sectors and for employers run by or doing business with the federal government or doing business in federally administered territory. In other sectors, federal enforcement authorities get assistance from lower-level governments.⁽²⁹⁶⁾

Mexico has ratified several International Labor Organization (ILO) conventions pertinent to occupational safety and health. These may, in effect, be regarded as federal labor law under a constitutional provision incorporating "treaties" into supreme national law.⁽²⁹⁷⁾

The Federal Labor Law (LFT), first promulgated in 1931 and amended since then by the Mexican Congress,⁽²⁹⁸⁾ codifies basic labor law,⁽²⁹⁹⁾ including requirements for worker compensation and workplace safety and health.⁽³⁰⁰⁾ It vests employers with duties to ensure workplace safety and health.⁽³⁰¹⁾ It vests labor authorities with responsibility to issue regulations, to establish tripartite (employer, employee, and government representatives) advisory commissions, to study problems and recommend solutions, to facilitate operation of enterprise joint committees, and to conduct inspections and ensure compliance.⁽³⁰²⁾

The Federal Regulation for Occupational Safety and Sanitation and the Environment (Safety Regulation), promulgated by the Ministry of Labor and Social Welfare (STPS) in 1997, supplanted a complex of prior regulations.⁽³⁰³⁾ It was issued pursuant to the Program for Employment, Training and Defense of Labor Rights; 1995-2000 ("Programa de Empleo, Capacitacion y Defensa de los Derechos Laborales: 1995-2000") issued by STPS in 1995 after broad public consultations on labor policy.⁽³⁰⁴⁾ Its objectives are modernization and simplification of the regulatory framework for occupational safety and health, along with better protection of both employee health and safety and employer property rights.⁽³⁰⁵⁾ It details employer and employee duties, sets out various safety and health rules,⁽³⁰⁶⁾ and enacts several new or special initiatives: chiefly promotion of private "verification units" which investigate compliance and facilitate voluntary prevention programs.⁽³⁰⁷⁾

Under authority of the Federal Measures and Standards Act (Standards Act), technical standards on specific matters are issued as Official Mexican Standards (NOMs).⁽³⁰⁸⁾ A number of important NOMs pertain to occupational safety and health.⁽³⁰⁹⁾

STPS issued its General Regulation for Inspection and Penalties for Violations of Labor Legislation (Inspections and Penalties Regulation) in 1998. Like the Safety Regulation, the Inspections and Penalties Regulation emerged from the 1995 Program for Employment, Training and Defense of Labor Rights: 1995-2000. It supersedes previous rules or workplace safety inspections and penalty impositions.⁽³¹⁰⁾

The Social Security Law (LSS) provides a system of financial protection, including worker compensation benefits for many workers, administered by the Mexican Institute of Social Security (IMSS).⁽³¹¹⁾ A significantly amended LSS went into effect in 1997.⁽³¹²⁾

The Federal Fiscal Code, the Federal Law on Administrative Procedure, and law on constitutional appeals play roles in the penalty and penalty-review process.⁽³¹³⁾

Key agencies are STPS, IMSS, and the National Advisory Commission on Occupational Safety and Health (Advisory Commission). STPS drafts technical safety and health standards; performs inspections; sets penalties; promotes operation of joint committees; maintains hazard statistics; promotes research; and disseminates information.⁽³¹⁴⁾ IMSS administers the chief worker compensation program and coordinates with STPS in carrying out prevention programs.⁽³¹⁵⁾ The Advisory Commission conducts studies, proposes prevention measures, and reviews draft standards.⁽³¹⁶⁾ Chaired by the STPS Secretary, it draws its other membership from IMSS, pertinent ministries, employer organizations, and trade union institutions.⁽³¹⁷⁾

Other institutions play secondary roles. The federal courts hear enforcement appeals and constitutional challenges.⁽³¹⁸⁾ The Ministry of Trade and Industrial Development (Trade Ministry) assists the Advisory Commission in licensing firms which accredit verification units to perform inspections.⁽³¹⁹⁾ The National Standard-Setting Commission (Standard-Setting Commission) issues an annual Program covering all regulatory topics, under which technical safety and health standards are developed.⁽³²⁰⁾ The Ministry of Environment, Natural Resources, and Fisheries regulates environmental hazards including ones pertinent to workplace safety and health. The Ministry of Health may likewise touch on workplace safety and health in its role of regulating toxic chemicals.⁽³²¹⁾ Conciliation and Arbitration Boards (CABs), chaired by government officials and composed of employer and employee representatives in equal numbers, may hear workplace disputes, including ones involving health and safety and worker compensation payments.⁽³²²⁾

B. Standards Development

Standard-setting for workplace safety and health comports with other forms of regulation under the Standards Act.⁽³²³⁾ The Standards Act was enacted to enhance transparency, uniformity, and efficiency in establishing NOMs and to improve compliance.⁽³²⁴⁾ It sets up the Standard-Setting Commission to coordinate the regulatory efforts of federal agencies, including STPS. The Standards Act aims to promote increased participation by public, private, scientific, and consumer representatives in standard-setting and compliance. It also establishes an accreditation system for testing laboratories, verifications units (private firms monitoring compliance), and standard-setting organizations (which issue voluntary-compliance standards called Mexican norms).⁽³²⁵⁾

The Standard-Setting Commission, with members drawn from STPS and other regulatory agencies, develops an annual Program for the establishment, modification, and/or cancellation of NOMs. Except for emergency rule-making, proposed NOMs should comport with the Program.⁽³²⁶⁾

NOMs on workplace safety and health fall into three major categories: 1) safety standards, addressing accident risks in processes and facilities; 2) health standards, addressing chronic or acute risks from factors like noise, light, temperature, poor air quality, toxins, carcinogens, and the like; and 3) structural standards, addressing institutions and procedures such as medical care, joint committees, information management, and hazard reporting.⁽³²⁷⁾

STPS initiates NOM promulgation with a preliminary draft.⁽³²⁸⁾ It draws on Mexican research and information and on international sources such as the International Labor Organization (ILO), OSHA, the European Community, the American National Standards Institute, and regulations from various countries.⁽³²⁹⁾

Preliminary drafts are reviewed by experts, pertinent domestic organizations, and/or by international entities as just listed.⁽³³⁰⁾ Accompanied by regulatory impact statements, they are then submitted to the Advisory Commission for review.⁽³³¹⁾ The regulatory impact statement must itemize advantages and disadvantages of the proposal, must explain alternatives considered and reasons for their rejection, must draw comparisons with previous regulations, and must assess compliance feasibility. Where substantial economic impact is anticipated, a monetized cost-benefit analysis, a statement of alternatives, and a comparison of international standards must be presented. Further expert review may also be ordered.⁽³³²⁾

The Advisory Commission posts approved drafts in the Official Federal Gazette (Gazette) for public comment. It reviews comments, including any from STPS, and posts its responses and reasoning.⁽³³³⁾ It then posts the final NOM in the Gazette. Each NOM must be revalidated every five years or else lapse.⁽³³⁴⁾

In addition to governing issuance of NOMs, the Standards Act governs Mexican norms, issued by national standard-setting organizations.⁽³³⁵⁾ Like NOMs, Mexican norms are promulgated under uniform procedures.⁽³³⁶⁾

C. Compliance

1. Employer Duties

The Constitution establishes a general employer duty to compensate for work-related death and disability. It also establishes a general duty to protect employees, roughly equivalent to that imposed by the OSH Act. In theory, authorities can use it to cite safety and health violations where no specific regulations apply.⁽³³⁷⁾

Specific duties arise from several laws. A number of duties are referenced repetitively in more than one law. Because sorting the various sources of duty does not appear important, these duties may be summarized together rather than itemized separately. Hence, the LFT, LSS, RFSHMAT, and Standards Act require employers to: obey standards; maintain safety and health programs; maintain compliance and compliance-verification systems; ensure proper equipment and hazardous substance controls; facilitate operation of joint committees; cooperate in studies; provide worker training and information about risks, especially toxins; post rules; allow labor inspections; provide information and reports to authorities; and protect pregnant and lactating women.⁽³³⁸⁾ Safety and health provisions apply to all employers, though other provisions exempt family enterprises.⁽³³⁹⁾

2. Employee Duties

Several duties are imposed on employees. They must comply with standards; assist endangered co-workers; cooperate with joint committees; participate in training; exercise care; use required protective equipment; undergo medical exams; inform employers of contagious diseases contracted; and report safety breaches to their employer. They must not endanger themselves or others, work while intoxicated or under the influence of drugs without medical certification and notice to the employer, or carry weapons unless required by the job.⁽³⁴⁰⁾

Employees have the right to have the joint committee inform them of the workplace safety and health record, to be present and speak freely during inspections, to obtain copies of inspection results, and to participate in legal proceedings.⁽³⁴¹⁾

3. Inspections

The Inspections and Penalties Regulation governs inspections and penalties regarding workplace safety and health throughout Mexico, whether enforcement lies with federal authorities or with state and federal district authorities.⁽³⁴²⁾ It has several aims: to promote regulatory simplicity, transparency, and clarity; to implement deregulation, reduced paperwork burdens and limits on inspector discretion; to harmonize inspection and penalty provisions with each other and with the Federal Law on Administrative Procedure, the Standards Act, and the Safety Regulation; to strengthen a new system of private verification, testing, and certification; and to fortify the government's advisory role.⁽³⁴³⁾ It decreases the frequency of periodic inspections from a six-month to a one-year interval.⁽³⁴⁴⁾ It imposes a one-day advance notice requirement for inspections and requires that this notice specify what the inspection will address, what legal rules are implicated, and what documents must be produced.⁽³⁴⁵⁾

Employers are given rights to notice on key developments in the enforcement process: abatement deadlines, reporting requirements, summonses, procedural rulings, penalty assessments, acquittals, appeal resolutions, and other orders and requirements.⁽³⁴⁶⁾

Workplaces are subject to three regular types of inspection. Initial inspections occur when a workplace is opened, expanded, or modified. Periodic inspections, normally on a one-year periodic basis, may also be scheduled more or less frequently based on prior record, nature of enterprise, degree of risk, number of employees, and location. Verification inspections monitor compliance with previous abatement orders.⁽³⁴⁷⁾

Workplaces are also subject to special inspections, which can be ordered at any time if authorities have knowledge of violations, accidents, mishaps or imminent dangers, or if they detect irregularities, falsehood or dishonesty in employer acts, reports, or documentation.⁽³⁴⁸⁾

Workers, employers, and unions may all report violations to authorities.⁽³⁴⁹⁾ Workers may complain individually or through a union about unsafe work, inaccurate reports, and joint committee failures to identify hazards or secure abatements.⁽³⁵⁰⁾ Authorities review complaints along with incident reports and other information to determine whether special inspections are warranted.⁽³⁵¹⁾ Criteria include: 1) seriousness of possible hazard; 2) compliance history; and 3) labor-management relations, with an eye toward non-interference with contract negotiations.⁽³⁵²⁾ Priority goes to large and high hazard firms, fatalities, serious accidents, and special hazard programs.⁽³⁵³⁾

Inspections and inspection policy are handled by a special STPS bureau. It trains inspectors; promulgates inspection criteria and guidelines; monitors compliance; conducts inspections; sets abatement deadlines; orders closings due to grievous hazards; keeps inspection reports; and advises and monitors joint committees.⁽³⁵⁴⁾ Inspectors must be certified by examination.⁽³⁵⁵⁾ Inspectors are expected to review documents (including accident and illness reports), interview workers, and inspect work materials.⁽³⁵⁶⁾

Inspectors must abide by specified standards of diligence and integrity, on pain of penalty. Specifically, they may not have a financial or personal interest in workplaces they inspect, nor may they accept gifts or donations from employers or employees.⁽³⁵⁷⁾ STPS monitors inspector performance by reviewing reports, investigating complaints, and scrutinizing practices.⁽³⁵⁸⁾

At the outset of any inspection, the inspector must provide the employer a written inspection order and a phone number to verify it, along with a statement of employer rights and obligations. Representatives of both employer and employees should be present.⁽³⁵⁹⁾ Employer records and joint committee reports will normally be consulted.⁽³⁶⁰⁾ A key employer right is to comment and provide evidence on facts reported.⁽³⁶¹⁾ Employee representatives may also submit comments.⁽³⁶²⁾ Inspectors may secure assistance from experts or from the joint committee.⁽³⁶³⁾ In addition to performing inspections, authorities can request information and documentation from employers, employees and joint committees.⁽³⁶⁴⁾

Following each inspection, inspectors must submit reports. Inspection reports are generally prepared on a same-day, on-site basis, so that declarations and signatures from the various parties may be included.⁽³⁶⁵⁾ Inspectors have several key additional duties, including: specifying abatement deadlines; monitoring abatement and compliance orders; suggesting immediate abatement measures for imminent dangers; proposing complete or partial workplace closure, where appropriate; promoting cooperation between employers and workforces; ordering substance testing; providing notice of inspections and penalties; and forwarding appropriate reports to the public prosecutor.⁽³⁶⁶⁾ In addition to ensuring basic regulatory compliance, inspectors are responsible to monitor legally-required workplace permits along with employee ability certificates and joint committee operations.⁽³⁶⁷⁾ They are charged with providing safety and health advice. They must honor trade secrets.⁽³⁶⁸⁾

4. Verification Units

Private firms called verification units monitor compliance as a supplement to official inspections.⁽³⁶⁹⁾ Employers and STPS can hire verification units to inspect and report on compliance to enforcement authorities.⁽³⁷⁰⁾ Verification units operating at STPS's behest must comply with requirements applicable to government inspectors.⁽³⁷¹⁾ Employers have a right to submit evidence, as they do with government inspectors.⁽³⁷²⁾

Accreditation lies with special private agencies, themselves overseen by the Trade Ministry and the Advisory Commission. Accreditation requirements and procedures are governed under the Standards Act.⁽³⁷³⁾ Verification units and accreditation agencies must comply with professional standards imposed by law or face sanctions, including partial or total suspension of operations, for noncompliance.⁽³⁷⁴⁾

Verification reports can be used to prove regulatory compliance, thereby securing exemption from government inspection. It is projected that this private verification program, under the additional authority of the Standards Act and the Safety Regulation, will enhance compliance by adding private inspection resources to the effort. Private verification does not displace governmental inspection and enforcement authority.⁽³⁷⁵⁾

5. Joint Committees

Joint committees provide still a third institutionalized compliance mechanism, additional to official and verification unit inspections.⁽³⁷⁶⁾ The LFT requires joint committees, with equal labor and management representation, in every workplace where it is "found necessary."⁽³⁷⁷⁾ Joint committees are charged not only with monitoring compliance and assisting in government inspections, but also with investigating accident causes, proposing preventive measures, and preparing reports.⁽³⁷⁸⁾ They perform follow-up inspections and report on abatement failures.⁽³⁷⁹⁾ Further, they can tailor rules to workplace situations and needs.⁽³⁸⁰⁾lective labor agreements may confer extra duties and decision-making power.⁽³⁸¹⁾

6. Penalties

Penalty recommendations are forwarded from inspection authorities to a special STPS bureau, which sets penalties, even where the inspection authority is non-federal.⁽³⁸²⁾ The Regulations for Inspections and Penalties set parameters for penalty proceedings. Accordingly, summonses must specify charges and explain how information was analyzed in formulating them.⁽³⁸³⁾ Employers have a right of reply to charges--including assertion of defenses, request for exceptions, and proffering of evidence--and the right to legal representation.⁽³⁸⁴⁾ Rulings must specify legal authority and reasoning.⁽³⁸⁵⁾

In contrast with the U.S., Mexico rarely imposes first-violation penalties.⁽³⁸⁶⁾ Penalties normally lie only for imminent dangers or failure to abate problems previously highlighted by inspectors or joint committees.⁽³⁸⁷⁾ Sanctions range from fines to partial or full closing of a facility. Size of fines legally turns on gravity of offense, on intentional or repeated nature of violations, and on company financial capacity.⁽³⁸⁸⁾ The Standards Act authorizes penalties for NOM violations apparently far heavier than the maximum previously available.⁽³⁸⁹⁾ The Safety Regulation stipulates that the Standards Act governs NOM violations. This allows for imposition of the heavier penalties. Penalties specified in the Safety Regulations apparently still govern Safety Regulation violations that do not offend any specific NOM. Administrative fines do not preclude criminal penalties.⁽³⁹⁰⁾

Under this procedure, employers may request modified penalties or extensions on abatement deadlines. There are three procedures for challenging citations and penalties. First, there is "right of review" (Recurso de Revision) within STPS. Second, and most importantly, appeal may be taken within 45 days to Mexico's lower federal court (Tribunal Fiscal) for reversal (Juicio de Nulidad).⁽³⁹¹⁾ Finally, an employer may challenge the constitutionality of a law applied to him before the federal court of appeals (Tribunal Colegiado) in a special procedure called amparo.⁽³⁹²⁾ They have fifteen days after citation to file for review.⁽³⁹³⁾ Both employers and employees may be fined for violations,⁽³⁹⁴⁾ but STPS rarely fines employees, perhaps because fear of fines chills worker reporting of violations.⁽³⁹⁵⁾

The sanctions bureau and the lower federal court are crucial players in setting penalty policy, since the bureau administers penalties in the shadow of the court's jurisprudence. Because the court exercises its most active review on determinations of employer financial capacity, sanctions bureau policy has been strongly affected there. The bureau now bases its estimate of financial capacity on the employer profit-share distributions mandated under Mexican law. The then bureau uses a table to translate an employer's profit-share figure into a standardized percentage of the maximum legal penalty for a given infraction. The resulting fine is then adjusted by other penalty-assessment factors, chiefly gravity of offense and special mitigating factors, to arrive at the actual penalty figure.⁽³⁹⁶⁾ Gravity of infraction is calibrated to three severity levels: light, for technical infractions causing no identifiable harm; serious, for infractions causing identifiable harm to employees; very serious, for infractions causing harm to the wider community. Two authorized penalty factors, employer intent and recurrence of offense, may play little actual role in assessments because violations are presumed to be non-intentional and because records seldom lend themselves to proof of recurrent infractions.⁽³⁹⁷⁾

D. Alternative Prevention and Voluntary Compliance

In 1978 IMSS and STPS created a risk reduction program, augmented in 1985.⁽³⁹⁸⁾ It stressed four initiatives: 1) direct risk reduction; 2) training improvements; 3) public awareness campaigns; and 4) coordination among government, labor, and employer organizations.⁽³⁹⁹⁾

Small firms receive information kits on potential hazards and basic prevention. Middle-size firms receive two-day site visits from multidisciplinary expert teams to recommend prevention measures. Some 11,000 of these occur annually. Large firms are targeted according to hazard levels for prevention-engineering audits.⁽⁴⁰⁰⁾ STPS facilitates operation of mandatory safety and health programs in large firms. Audits are used to design tailored programs for participating firms. Participation is voluntary.⁽⁴⁰¹⁾ Recent reforms seek to encourage voluntary compliance. The voluntary compliance initiative counterposes the sharpened penalties authorized by recent reforms. Under the voluntary compliance initiative, employers can request STPS advisory inspections under what is called the advice and orientation program. No penalties will be imposed pursuant to these advisory inspections aimed at assisting employers in improving their safety and health management.⁽⁴⁰²⁾

E. Information Systems

Employers must give notice of accidents and work-related illnesses to STPS, to the pertinent inspection authority, to IMSS, and to the federal CAB.⁽⁴⁰³⁾ STPS, labor inspection authorities, and the federal CAB collect data from employers on job-related accidents, injuries, and illnesses.⁽⁴⁰⁴⁾ IMSS analyzes statistics and uses them to develop prevention strategies for reducing accidents and illnesses.⁽⁴⁰⁵⁾ The Social Security and Services Institute for Civil Service Personnel (ISSSTE) gathers workplace injury and illness statistics in connection with providing workers' compensation and other benefits to government employees. Petroleos Mexicanos (PEMEX), the state-owned oil company, does likewise in connection with issuing workers' compensation and medical care to its employees.⁽⁴⁰⁶⁾

The National Statistics and Geographic Information Service, within the Secretariat of Planning and Budget, creates statistics from death certificates on causes of occupational fatalities.⁽⁴⁰⁷⁾ Information is used for experience-rating of workers' compensation premiums, for targeting compliance inspections, and for identifying workplaces needing hazard reduction assistance.⁽⁴⁰⁸⁾

The Advisory Commission evaluates and proposes rules for records and reporting.⁽⁴⁰⁹⁾ It also studies ways to harmonize data collection from different recordkeeping systems, comply with the ILO's Labour Statistics Convention, and incorporate data on workers not covered by any system.⁽⁴¹⁰⁾

F. Training

IMSS, STPS, and joint committees offer numerous courses for workers, joint committees, and specialists.⁽⁴¹¹⁾ IMSS and STPS also offer training for middle management on specific topics and counsel employers on developing prevention cultures.⁽⁴¹²⁾

STPS runs a forensic medicine department, focused on industrial medicine. Its physician staff intervenes in safety and health disputes and conducts technical studies in industrial medicine, rehabilitation, and related fields. STPS also operates a degree program for training occupational physicians to work within particular firms.⁽⁴¹³⁾

IMSS offers regional research and education programs, and certain universities offer programs and degrees.⁽⁴¹⁴⁾ IMSS employs medical experts, runs a residency program to train industrial medicine specialists, and offers courses in occupational medicine through several universities.⁽⁴¹⁵⁾ Industrial medicine specialists are certified by the National Academy of Medicine.⁽⁴¹⁶⁾ PEMEX has its own training system.⁽⁴¹⁷⁾ State safety and health advisory commissions offer informational programs.⁽⁴¹⁸⁾

G. Workers' Compensation

The Constitution and LFT establish a general employer duty to compensate for work-related death and disability.⁽⁴¹⁹⁾ Workers injured or made ill by their jobs commonly receive compensation under the LSS, which provides various benefits for pregnancy and maternity leave, child care, illness, accidents, disability, and death.⁽⁴²⁰⁾ The LSS, Mexico's chief system of compensating work-related injuries and illnesses, covers the private sector, plus some public employers, especially state-owned companies.⁽⁴²¹⁾ In addition to these general schemes, there are specialized compensation systems for government and PEMEX workers administered by the ISSSTE and PEMEX, respectively.⁽⁴²²⁾

The IMSS manages workers' compensation under the LSS and issues benefits. ⁽⁴²³⁾ Covered employers register workers with and pay premiums to IMSS, which delivers indemnity to injured or ill workers, even those indirectly employed through intermediaries.⁽⁴²⁴⁾ The premiums that fund benefits vary with job risk and with number and seriousness of prior accidents and illnesses.⁽⁴²⁵⁾ They are adjusted to reward good safety and health performance and to punish poor performance.⁽⁴²⁶⁾ Firms may move among fee categories, depending on risk factors.⁽⁴²⁷⁾

The 1997 LSS revises premium-setting policy. It places less emphasis on sector risk classifications, more on a particular firm's individual performance. In theory, even firms in the highest risk sectors can be rewarded with premiums reduced to the level of lowest-risk sectors.⁽⁴²⁸⁾ Increased emphasis on employer record enhances performance incentives. It de-emphasizes making whole sectors at divergent risk levels bear their proportionate "shares" of aggregate compensation costs.

Employers who default on premiums owed to IMSS are subject to financial penalties.⁽⁴²⁹⁾ Employers who comply with LSS obligations have satisfied the LFT's worker compensation obligations.⁽⁴³⁰⁾ If an employer who caused an injury or illness has defaulted on its LSS obligations, IMSS will nevertheless provide compensation.⁽⁴³¹⁾ The employer will be relieved of LFT obligations but subject to additional penalties under the LSS.⁽⁴³²⁾ Employers causing intentional harms must indemnify IMSS for compensation paid.⁽⁴³³⁾

Benefits cover medical expenses and income indemnity for disability.⁽⁴³⁴⁾ Under the IMSS, claimants receive benefits despite pre-existing conditions that increase the likelihood of harm.⁽⁴³⁵⁾ Eligibility is defeated if the claimant was intoxicated at the time of the accident, or under the influence of non-prescribed drugs. Eligibility is also defeated if the claimant purposely caused the accident, or it resulted from a fight or suicide attempt.⁽⁴³⁶⁾

A CAB may increase an indemnity for inexcusable employer conduct, like flouting health and safety laws, failing to take steps against repeat accidents, failing to follow joint committee prevention recommendations, and failing to address risks identified by workers.⁽⁴³⁷⁾ An employer's liability for registered workers ends once it pays its fee to IMSS. Disputes over compensation are then between the employee or survivors and IMSS.⁽⁴³⁸⁾ They may be heard before a CAB.⁽⁴³⁹⁾ Employer grievances with IMSS can be heard before tripartite bodies created under LSS authority.⁽⁴⁴⁰⁾

END NOTES

²⁹¹ In referring to Mexican legal provisions, there is a dilemma between plain language English on the one hand and names and abbreviations conventionally used in Mexico on the other. The text following tries to deal with this dilemma in a flexible fashion. Citations adopt titles and abbreviations conventionally used in Mexico. Substantive discussion adopts plain language references, for ease in reading. Correlations between plain language references and conventional Mexican names and abbreviations can be discerned by moving between main text and footnotes.

²⁹² Stephen F. Befort & Virginia E. Cornett, Beyond the Rhetoric of the NAFTA Treaty Debate: A Comparative Analysis of Labor and Employment Law in Mexico and the United States, 17 Comp. Lab. L. J. 281(1996).

²⁹³ CONSTITUCION POLITICA DE LOS ESTADOS UNIDOS MEXICANOS art. 73 (Mex.).

²⁹⁴ CONST. art. 72 (Mex.); GOVERNMENT OF MEXICO: COMPARISON OF JOB RELATED SAFETY AND SANITATION PROGRAMS IN MEXICO, CANADA, AND THE U.S., UPDATED INFORMATION FOR MEXICO 4 (1998) [hereinafter MEXICO SAFETY INFORMATION I]; GOVERNMENT OF MEXICO: COMPARISON OF JOB RELATED SAFETY AND SANITATION PROGRAMS IN MEXICO, CANADA, AND THE U.S., UPDATED INFORMATION FOR MEXICO 7 (1999) [hereinafter MEXICO SAFETY INFORMATION II].

²⁹⁵ CONST. art. 89 (Mex.); DR. NESTOR DE BUEN LOZANO & LIC. CARLOS E. BUEN UNNA, U.S. DEP�T OF LABOR, A PRIMER ON MEXICAN LABOR LAW 4 (1991)[hereinafter DE BUEN LOZANO].

²⁹⁶ CONST. art. 123-A � XXI (Mex.); Michael Joseph McGuinness, The Landscape of Labor Law Enforcement in North America: An Examination of Mexico�s Labor Regulatory Policy and Practice, 29 LAW & POL�Y INT�L BUS. 365, 374 (1998); OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR & GENERAL DIRECTORATE OF MEDICINE & SAFETY IN THE WORKPLACE, MEXICAN SECRETARIAT OF LABOR & SOCIAL SECURITY, A COMPARISON OF OCCUPATIONAL SAFETY AND HEALTH PROGRAMS IN THE UNITED STATES AND MEXICO: AN OVERVIEW I-5 (1992) [hereinafter OSHA COMPARISON].

²⁹⁷ Conventions ratified by Mexico pertinent to workplace safety and health include Convention 150 (Labour Administration), Convention 155 (Occupational Safety and Health), Convention, Convention 161 (Occupational Health Services) and Convention 170 (Chemicals). HUMAN RESOURCES DEVELOPMENT CANADA, OFFICE OF INTER-AMERICAN LABOUR COOPERATION, LABOUR BRANCH: REVIEW OF PUBLIC COMMUNICATION CAN 98-1 (PART II), REPORT ISSUED PURSUANT TO THE NORTH AMERICAN AGREEMENT ON LABOUR COOPERATION [hereinafter REVIEW CAN 98-1], at 13, 16-18.

²⁹⁸ LEY FEDERAL DEL TRABAJO [hereinafter L.F.T.] (Mex.). (as amended through March 1995)(Foreign Tax Law Publishers, Inc., trans., 1995); see OSHA COMPARISON, supra note 296, at I-2.

²⁹⁹ MEXICO SAFETY INFORMATION II, supra note 294, at 6.

³⁰⁰ L.F.T., supra note 298, arts. 472-522.

³⁰¹ Id. art. 132 �� XVI, VIII.

³⁰² Id. arts. 511, 541-42. MEXICO SAFETY INFORMATION II, supra note 294, at 9-10; McGuinness, supra note 296, at 371-372; OSHA COMPARISON, supra note 296, at I-2.

³⁰³ "Reglamento Federal de Seguridad, Higiene y Medio Ambiente de Trabajo," D.O., 21 de enero de 1997(Mex.) [hereinafter R.F.S.H.M.A.T.]; MEXICO SAFETY INFORMATION I , supra note 294, at 4-5.

³⁰⁴ REVIEW CAN 98-1, supra note 297, at 21.

³⁰⁵ MEXICO SAFETY INFORMATION II, supra note 294, at 14.

³⁰⁶ MEXICO SAFETY INFORMATION II, supra note 294, at 15. Rules cover, among other things: fire prevention; handling of industrial equipment, power tools, and dangerous materials; personal safety gear; environmental hazards; and preventions programs. McGuinness, supra note 296, at 372-373.

³⁰⁷ R.F.S.H.M.A.T., supra note 303, Introduction; MEXICO SAFETY INFORMAITON II, supra note 294, at 10, 14. Other initiatives include reducing unneeded licensing and registration requirements; eliminating registration requirements for joint committees in small businesses; expanding protection for minors and for pregnant and nursing women; fostering better training with respect to hazardous jobs and substances; detailing rules on pollutants, toxins, and ergonomics; and launching specified rules for forestry, sawmill, agriculture and other industries. R.F.S.H.M.A.T., supra note 303, Introduction; MEXICO SAFETY INFORMATION II, supra note 294, at 10, 14.

³⁰⁸ MEXICO SAFETY INFORMATION II, supra note 294, at 8.

³⁰⁹ Id. at 15-16.

³¹⁰ Reglamento general para la inspeccion y applicacion de sanciones por violaciones a la legislacion laboral,� D.O., 6 de julio de 1997(Mex.), Introduction [hereinafter R.G.I.A.S.V.L.L.].

³¹¹ LEY DEL SEGURO SOCIAL [hereinafter L.S.S.](Mex.) 1997; See OSHA COMPARISON, supra note 296, at I-20.

³¹² The previous L.S.S. had been in effect since 1973. See Instituto Mexicano del Seguro Social(visited July 7. 1998) (citing text of old and new laws).

³¹³ Codigo Fiscal art. 207 (1978); Ley Federal de Procedimiento Administrativo arts. 83, 85 (1992); Ley de Amparo arts. 114-115. �See generally Michael J. McGuinness, The Role of Sanctions and Incentives in Labor Regulation: Mexico�s Administrative Sanctioning Procedure (unpublished manuscript, on file with authors).

³¹⁴ See generally McGuinness, supra note 313; Labor and Social Security Secretariat (STPS), Action Plan for STPS and DOL Cooperation: Technical Analysis Comparing the Mexican and U.S.A. Systems for Labor Safety and Sanitation 31 (Aug. 8, 1991)(unpublished draft, on file with the authors) [hereinafter Action Plan].

³¹⁵ See OSHA COMPARISON, supra note 296, at IV-3; MEXICO SAFETY INFORMATION I, supra note 294, at 7.

³¹⁶ R.F.S.H.M.A.T., supra note 303, arts. 114, 116; L.F.T., supra note 298, art. 512-A; Action Plan, supra note 314, at 5.

³¹⁷ R.F.S.H.M.A.T., supra note 303, Introduction.

³¹⁸ McGuinness, supra note 313, at 6-7, 8-15.

³¹⁹ LEY FEDERAL SOBRE METROLOGICA Y NORMALIZACION [L.F.M.N.] art. 70-A (1997) (Mex.).

³²⁰ Id. arts. 60, 61-A.

³²¹ MEXICO SAFETY INFORMATION II, supra note 294, at 5; McGuinness, supra note 296, at 375, n. 46.

³²² CONST. art. 123-A, �� XX, XXXI (Mex.); L.F.T., supra note 298, arts. 509, 600 � IV; DE BUEN LOZANO, supra note 295, at 37. See also Befort & Cornett, supra note 292, at 296.

³²³ L.F.M.N., supra note 319, art. 40.

³²⁴ Id. art. 2 �� (II)(a), (c); MEXICO SAFETY INFORMATION II, supra note 294, at 8.

³²⁵ L.F.M.N., supra note 319, art. 2 �� (II)(b), (d)-(f); MEXICO SAFETY INFORMATION II, supra note 294, at 8-9.

³²⁶ L.F.M.N., supra note 319, arts. 60, 61-A.

³²⁷ MEXICO SAFETY INFORMATION II, supra note 294, at 15.

³²⁸ Id. at 13.

³²⁹ MEXICO SAFETY INFORMATION I, supra note 294, at 8; MEXICO SAFETY INFORMATION II, supra note 294, at 13.

³³⁰ MEXICO SAFETY INFORMATION I, supra note 294, at 8; MEXICO SAFETY INFORMATION II, supra note 294, at 13; L.F.M.N., supra note 319, art. 43.

³³¹ L.F.M.N., supra note 319, arts. 44, 46 � (I).

³³² Id. art. 45.

³³³ Id. arts. 46 �(II), 47 �� (II)-(III).

³³⁴ Id. art. 51; MEXICO SAFETY INFORMATION I, supra note 294, at 8; MEXICO SAFETY INFORMATION II, supra note 294, at 13.

³³⁵ L.F.M.N., supra note 319, arts. 51-A, 65-66.

³³⁶ Id. arts. 66-67.

³³⁷ CONST. art. 123-A �� XIV-XV (Mex.); OSHA COMPARISON, supra note 296, at II-2, II-3.

³³⁸ L.S.S., supra note 311, arts. 51, 83. See L.F.T., supra note 298, art. 132, �� I, XV- XXIV, XXVIII; art.504, �� I- IV. See also R.F.S.H.M.A.T., supra note 303, Introduction, arts. 17, 130; L.F.M.N., supra note 319, art. 58.

³³⁹ L.F.T., supra note 298, art. 352 (�The provisions of this law (except the safety and health standards) shall not apply to family enterprises�); art. 472 (�The provisions of this Title [Title IX - Occupational Injuries] shall apply to all labor relationships, including special work, subject to the limitation made in Article 352�). The L.F.T. does not specifically define �family enterprises.�

³⁴⁰ L.F.T., supra note 298, art. 134-5; R.F.S.H.M.A.T., supra note 303, art. 18; MEXICO SAFETY INFORMATION II, supra note 294, at 19.

³⁴¹ OSHA COMPARISON, supra note 296, at II-4.

³⁴² R.G.I.A.S.V.L.L., supra note 310, arts. 1, 2 �� II-IV.

³⁴³ Id. at Introduction.

³⁴⁴ Over 47,000 inspections were performed in 1996, up from some 37,000 in 1990. McGuinness, supra note 296, at 382. Prolonging the interval should cut the total number of inspections, unless more employers are subjected to them. As of 1995 and 1996, inspectors performed upwards of 200 inspections per year. Id. at 386.

³⁴⁵ R.G.I.A.S.V.L.L., supra note 310, Introduction, art. 17. As a matter of policy, three-day advance notice is standard, to afford employers time to gather and arrange pertinent documents. McGuinness, supra note 296, at 396.

³⁴⁶ R.G.I.A.S.V.L.L., supra note 310, art. 6.

³⁴⁷ Id. art. 13; McGuinness, supra note 296, at 385.

³⁴⁸ R.G.I.A.S.V.L.L., supra note 310, art. 14. McGuinness, supra note 296, at 379-380.

³⁴⁹ L.F.T., supra note 298, art. 1003; See OSHA COMPARISON, supra note 296, at II-4; MEXICO SAFETY INFORMATION II , supra note 294, at 21.

³⁵⁰ See OSHA COMPARISON, supra note 296, at II-11.

³⁵¹ Id. at II-4, 5.

³⁵² Id. at II-5; MEXICO SAFETY INFORMATION II, supra note 294, at 21.

³⁵³ OSHA COMPARISON, supra note 296, at II-10.

³⁵⁴ REVIEW CAN. 98-1, supra note 297, at 19; McGuinness, supra note 296, at 376-380. The Bureau is called the General Division of Federal Labor Inspection. Id.

³⁵⁵ R.G.I.A.S.V.L.L., supra note 310, art. 7; McGuinness, supra note 296, at 382. Training includes classroom, practice, and on-the-job components. Id. at 383-384.

³⁵⁶ Id. at 384, 395-396.

³⁵⁷ Id. arts. 28-29; REVIEW CAN 98-1, supra note 297, at 25; see also L.F.T. supra note 298, arts. 547-48.

³⁵⁸ Id. at 385.

³⁵⁹ MEXICO SAFETY INFORMATION II, supra note 294, at 22.

³⁶⁰ Id. at 3.

³⁶¹ R.G.I.A.S.V.L.L., supra note 310, Introduction, art. 17.

³⁶² Id. art. 22.

³⁶³ Id. art. 19.

³⁶⁴ Id. art. 15.

³⁶⁵ McGuinness, supra note 296, at 399-400, 407-408. Because preparing a proper report is time-consuming, there is constraint on time for document review, facilities inspection, and interviews. Id.

³⁶⁶ R.G.I.A.S.V.L.L., supra note 310, arts. 8, 31; MEXICO SAFETY INFORMATION II, supra note 294, at 23; REVIEW CAN 98-1, supra note 297, at 24.

³⁶⁷ R.G.I.A.S.V.L.L., supra note 310, art. 9; REVIEW CAN 98-1, supra note 297, at 24.

³⁶⁸ Id. art. 10.

³⁶⁹ MEXICO SAFETY INFORMATION II, supra note 294, at 18.

³⁷⁰ Id. at 13-14, 18; R.F.S.H.M.A.T., supra note 303, Introduction; R.G.I.A.S.V.L.L., supra note 310, art. 16.

³⁷¹ L.F.M.N., supra note 319, art. 86.

³⁷² Id. art. 99.

³⁷³ Id. arts. 68-73.

³⁷⁴ Id. arts. 118, 119, 120-A, 122.

³⁷⁵ Id. arts. 85, 96; R.G.I.A.S.V.L.L., supra note 310, art. 16; MEXICO SAFETY INFORMATION II, supra note 294, at 13-14, 18.

³⁷⁶ MEXICO SAFETY INFORMATION II, supra note 294, at 18.

³⁷⁷ Id. at 11. Joint committees are actually found mainly in workplaces with more than ten workers, which represent 20 percent of enterprises, employing 80 percent of workers. In 1992, approximately 114,000 workplaces had registered committees. OSHA COMPARISON, supra note 296, at xi, IV-5.

³⁷⁸ L.F.T., supra note 298, art. 509; MEXICO SAFETY INFORMATION II, supra note 294, at 11, 24; DE BUEN LOZANO, supra note 295, at 21.

³⁷⁹ See OSHA COMPARISON, supra note 296, at II-7.

³⁸⁰ Id. at I-19.

³⁸¹ L.F.T., supra note 298, art. 392; See Befort & Cornett, supra note 292, at 296.

³⁸² MEXICO SAFETY INFORMATION II, supra note 294, at 17. The bureau is called the General Division of Legal Affairs. McGuinness, supra note 296, at 387, n. 124. See generally McGuinness, supra note 313, at 4-5. In recent years, 85 percent to 90 percent of penalty recommendations from the STPS federal inspection bureau led to penalty orders. Id. at 7, n. 19.

³⁸³ R.G.I.A.S.V.L.L., supra note 310, art. 32.

³⁸⁴ McGuinness, supra note 313, at 4-5; R.G.I.A.S.V.L.L., ^supra note 310, arts. 32-33.

³⁸⁵ R.G.I.A.S.V.L.L., supra note 310, art. 37.

³⁸⁶ UAW HEALTH AND SAFETY DEPARTMENT, COMPARISON OF MEXICAN AND UNITED STATES OCCUPATIONAL SAFETY AND HEALTH LEGISLATION, REGULATION, AND ENFORCEMENT 1, at 9 (1993) [hereinafter UAW]; R.G.I.A.S.V.L.L., supra note 310, art. 38.

³⁸⁷ See OSHA COMPARISON, supra note 296, at IV-4. MEXICO SAFETY INFORMATION I, supra note 294.

³⁸⁸ L.F.M.N., supra note 319, art. 115; R.G.I.A.S.V.L.L., supra note 310, art. 38. See OSHA COMPARISON, supra note 296, at II-7; L.F.T., supra note 298, art. 512-D; Action Plan, supra note 314, at 6.

Fines for Safety Regulation violations range between 15 and 315 times the general daily minimum wage in the locality of the workplace in question, with magnitude of penalty turning on nature and severity of violation. Fines may be doubled for employers who flout abatement orders. No information is available for this study on whether fines can be magnified by counting violations separately per employee or per day. R.F.S.H.M.A.T., supra note 303, arts. 165-168.

Employers can normally receive fines from 15 - 315 times the general minimum wage for failure to fulfill the training obligation. This can be doubled if the violation is not timely corrected. MEXICO SAFETY INFORMATION II, supra note 294, at 23; L.F.T., supra note 298, art. 994, � IV.