The economic damages to companies and workers due to the COVID-19 pandemic are already being affected not only by the decrease in activities registered in various states of the country, but also because the federal government has omitted to declare – formally – the contingency. health , a situation that is provided for in our laws to respond to legal and labor problems that arise in this type of situation.
The Federal Labor Law (LFT) establishes in its articles 42 Bis, 427 and 429, that when the competent authorities issue a declaration of health contingency, labor relations are temporarily suspended, and in these cases, the employer is obliged to pay the employee compensation equivalent to one day of minimum wage, for each day the suspension lasts. This payment cannot exceed one month .
This does not mean that labor relations are terminated, but that they are only suspended for the duration of the health contingency, but this does have legal consequences on employers' obligations.
Below, we answer some of the most common questions that have arisen in this context both among employers and between employees and workers:
Can I be fired right now?
Yes, unfortunately, employers can terminate labor relations with their workers at this time, although that means terminating the employment relationship unjustifiably, for which the employer must pay compensation of three months 'salary, plus 20 days' salary for year worked, seniority premium, and the proportional part of benefits such as the Christmas bonus.
However, it is not in anyone's interest for companies to make mass layoffs paying these severance payments, since this affects both the worker and the company. The most recommended is that an agreement be reached between the employer and the workers so that they do not completely lose their income, and at the same time the source of work is also conserved, obviously all this will depend on the size of the company and the size of the company. financial situation you are in.
What do I do if I am fired and I get coronavirus?
Article 109 of the Social Security Law establishes that the insured worker who has lost his job shall keep, for eight weeks after unemployment, the right to receive medical and maternity assistance, surgical, pharmaceutical and hospital care. The beneficiaries of the dismissed worker, such as their children and spouse, enjoy the same right.
To retain the medical services of the Mexican Social Security Institute (IMSS), for eight weeks after the end of the employment relationship, the worker must have previously contributed at least eight uninterrupted weeks.
Therefore, if you are out of work at this time, and because the federal government has not declared a health contingency , the rules that must be followed are the same as when an unjustified dismissal occurs, so in addition to receiving the corresponding compensation, You will continue to enjoy the IMSS medical services, together with your beneficiaries, for eight weeks.
Will I receive my salary if the company suspends activities?
This is the worst case scenario for companies and workers, and it is just the one that has been happening since last week in various entities of the country, where their governments have requested that public establishments be closed, with the aim of containing coronavirus infections .
Again, as the federal government, through the General Health Council, has not made the official declaration of health contingency, the employers, instead of dismissing their workers, may choose to temporarily suspend labor relations, arguing that they are before a case of force majeure, which is indicated in articles 427, 429 and 430 of the Federal Labor Law.
In this hypothesis, the employer is not concluding the labor relations with his employees, but only temporarily suspending them, although this must be approved by the Board of Conciliation and Arbitration of the entity where the establishment is located. If the Conciliation Board approves this suspension, always at the request of the employer, that same instance is the one that establishes the compensation that will correspond to the workers , which cannot exceed one month's salary.
For micro, small and medium-sized companies, this is the most recommended option due to the omissions of the federal government and the little coordination it has had with the governments of the federal entities. In this way, the source of work is preserved, even if its activities are suspended; the employer does not have to pay the severance payments as if they were unjustified dismissals, and the workers will be able to return to their positions when the causes of force majeure are over.
It is possible that the Conciliation and Arbitration Board does not approve the referred suspension, so all workers must return to work, and the employer must pay their wages in full. If this were to happen, the Board's decision is challengeable, especially since that criterion would be in contradiction with the closure of establishments recommended by the authorities as a measure to contain the pandemic.
It is also possible that, from this week, the Conciliation and Arbitration Boards in the federal entities are no longer working or only have on-call activities , which would make it materially impossible for many employers to come to request the approval of the suspension. If your company is in this case, it is best to dialogue and reach an agreement with the workers.
In suspension of activities, continue to pay fees to IMSS?
If the employer suspends activities, obeying the recommendations of the local authorities, and does not request the approval of the Conciliation and Arbitration Board, he must continue to pay the dues to the IMSS for each of his employees. These, in turn, will continue to enjoy all the Social Security benefits as if they were working.
Therefore, as long as a declaration of health contingency is not published, it is recommended that the employer go to the Board, arguing that he is in a case of force majeure, as noted above.
In the event that the Conciliation and Arbitration Board approves the suspension of work due to force majeure, the employer is no longer obliged to pay the IMSS fees for the duration of the suspension . In this case, the employer must deregister his workers from Social Security, showing the endorsement previously given by the Conciliation Board, for work to be suspended.
Employees, meanwhile, will enjoy medical services for eight weeks after the employer's leave. When the cause of force majeure ends, and the employees return to work, the obligation to pay dues to the IMSS on the part of the company is resumed.
Why should the government declare a health contingency?
When the General Health Council declares a health contingency, or in its absence, by decree, the President of the Republic, productive activities can be suspended in whole or in part, everything depends on the terms of the declaration, which must be published in the Official Gazette of the Federation. In these cases, employers are obliged to pay their workers compensation of one day of minimum wage, for each day the suspension lasts, without exceeding one month.
At the same time, the same declaration of health contingency must foresee the way in which the IMSS benefits will subsist, since in a suspension of work for these causes, after the compensation that the employers must pay, they also stop paying the fees to the Social Security.
In fact, in accordance with the second paragraph of article 109 of the Social Security Law, the Federal Executive may request the Technical Council of that institution to extend the period of conservation of workers' rights, considering the economic and labor conditions of the country.