By Attorney José Díaz
As of this month, an employee has several scenarios in which he can make use of certain periods of time to attend critical events of a family-medical nature. The Law of the Mexican Institute of Social Security (LSS) and the Federal Labor Law (LFT) now establish that in urgent circumstances, the employee has the right to a permit or leave that allows him or her to adequately address said situations.
In effect, the Ministry of Labor and Social Welfare published in the Official Gazette of the Federation on June 4, 2019, a decree by means of which various provisions of the LSS and the LFT are amended and added to, mainly:
Section 140 Bis of the LSS is additioned as following:
Section 140 Bis. In the case of insured working mothers or fathers, whose children up to sixteen years of age have been diagnosed by the Institute with cancer of any kind, they may enjoy a license for medical care of their children to be absent from their work in case their diagnosed child or adolescent requires medical rest during critical periods of treatment or hospitalization through the medical treatment, according to the treating physician’s prescription, including, if applicable, treatment for pain relief and palliative care for advanced cancer.
The Institute may issue to one of the insured working parents, which is subject to the case provided for in the preceding paragraph, a certificate attesting to the oncological condition and the duration of the respective treatment, so that the employer or employers of these have knowledge of such license.
The license issued by the Institute to the father or mother that is an insured worker, shall be valid for one and up to twenty-eight days. As many licenses as possible may be issued for a maximum period of three years without exceeding three hundred and sixty-four days of license, which shall not necessarily be continuous.
LSS (2019)
This scenario is applied as follows:
| Elegible subjects | Scenario | Cause/Reason | Suspension |
| Insured workers (mother or father) | Child under 16 years old | Diagnosed by the Institute (IMSS) of any form or type of cancer. | License for medical care during critical periods |
Other important aspects have to do with the following issues:
| Who grants the license | Requirements | License time limit | Wage |
| IMSS (Mexican Institute of Social Security) | * Proof of condition. * Duration of treatment. * License issuance. | * From 1 up to 28 days. * Can be extended up to 3 years. * Without exceeding 364 days of license accumulated on such period (3 years). * Can be continuous days. * There is no limit in the quantity of licenses. | Retribution according to the percentage fixed by IMSS. |
For these purposes, the “suspension of the effects of the employment relationship” is also added to the LFT, in Section 42. This is understood as the temporary interruption of the employment relationship, since the main obligations that arise from the employment relationship are affected (provide the service and pay the salary in some cases), but the labor nexus remains in force, even though the service is not provided and in some cases, the salary is not paid.
An example of the suspension of the effects in the employment relationship is the pre and post maternity leave periods, in which there is no obligation to work but there is an obligation to pay the salary.
To issue licenses, IMSS must consider the following aspects:
- The license is granted at the request of the father or mother (it is recommended in writing).
- For the father or mother who has the position to exercise parental authority or child custody.
- The license cannot be issued to both parents of the diagnosed child.
- Licenses will cease:
- When the minor does not require hospitalization or medical rest during the critical periods of treatment;
- Due to death of the minor;
- When the minor turns 16 years old;
- When the ascendant who enjoys the license is hired by a new employer.
The decree states that the insured working parents or mothers located in the case established to be granted a license for medical care, must have covered at least 30 weekly contributions in the 12-month period prior to the date of diagnosis by the institutional medical services and, in case of not complying with this period, have at least 52 weeks of immediate quotation prior to the start of the license. They will also enjoy a subsidy equivalent to 60% of the last daily contribution wage registered by the employer.
Sections 42, 132 and 170 of the LFT are also reformed (and added to), which establish:
Section 42.
IX. The license referred to in Section 140 Bis of the Social Security Law.Section 132.
XXIX Bis. To grant facilities conducive to the employees regarding the licenses issued by the Institute as established on Section 140 Bis of the Social Security Law.Section 170 Bis. The parents of minors diagnosed with any type of cancer, will enjoy the license referred to in Section 140 Bis of the Social Security Law, in such terms, with the intention of accompanying the aforementioned patients in their corresponding medical treatments.
LFT (2019)
The decree omits to point out, with regard to the LFT, when the suspension of the effects in the employment relationship begins and when it ends. That is, from when the license granted becomes effective and when the employees must return to work.
The purpose of this newsletter is to provide an informative summary of the new provisions related to companies in the reform of the LFT, but for the execution of specific tasks, consult your lawyer.
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