Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On June 4, 2019, the Mexican Department of Labor and Social Welfare (STPS by its acronym in Spanish1) published a Decree in the Official Gazette of the Federation, amending the Social Security Law, the Law of the Institute of Security and Social Services of State Workers, and the Federal Labor Law. The Decree takes effect June 5, 2019 and revises each of these regulations to allow parents to take leave time from work to care for children under the age of 16 who have been diagnosed with cancer.
Social Security Laws
Article 140 Bis has been added to the Social Security Law to provide a new care leave to insured working mothers or fathers, whose children of up to sixteen years of age have been diagnosed with cancer of any kind by the Mexican Institute of Social Security (IMSS by its acronym in Spanish2), in the following circumstances.
A care leave will be granted by IMSS to insured working parents whose covered children require medical rest during critical periods of treatment or hospitalization according to the physician's orders, including treatment for pain relief and advanced cancer care.
The IMSS may issue a certificate attesting to the oncological condition and duration of the treatment, so that the employer is aware of the need and length of such leave.
The care leave certificate issued by the IMSS to the insured father or mother shall be valid for up to 28 days. IMSS can issue as many certificates as needed within a period of three years, but the employee’s leave cannot exceed 364 days in total.
The insured working parent will enjoy a subsidy equivalent to 60% of the last contribution base salary registered by the employer with the IMSS, provided that the employee has at least 30 weekly statutory social security contributions covered in the 12-month period prior to the date of the diagnosis. If that standard is not met, the employee seeking leave must have at least 52 immediate weekly statutory social security contributions prior to the start of the care leave.
The care leave may be granted only at the request of the interested party, to either the father or mother with parental custody of the child. In no case will this leave be granted to both working parents.
Care leaves granted to the working parent shall cease in the following situations:
- When the minor no longer requires hospitalization or medical rest during the critical periods of treatment;
- Due to the death of the minor;
- When the child turns 16 years old; or
- When the parent who receives the leave is hired by a new employer.
Article 37 Bis was also added to the Law of the Institute of Security and Social Services of State Workers to effectuate this leave.
Federal Labor Law
Additionally, a new Section IX was added to Article 42 of the Federal Labor Law to acknowledge the care leave as a cause of temporary suspension of the employment relationship and payment of wages without any responsibility for the worker and employer.
Lastly, the Federal Labor Law obligates employers to grant the care leaves to workers as per legislative provisions established in Article 140 Bis of the Social Security Law. The federal law now specifically recognizes the right of the parents of minors diagnosed with any type of cancer to enjoy the relevant care leave.
1 The acronym “STPS” stands for Secretaría del Trabajo y Previsión Social.
2 The acronym “IMSS” stands for Instituto Mexicano del Seguro Social.