When an employee is granted a disability, questions always arise, such as when does he/she stop reporting to work? is it the employer’s obligation to continue paying the salary?
In view of this, it is important to understand the fundamental obligations in any labor relationship, among which is the proper registration with the IMSS of all our employees with the actual salary they receive. This registration, together with the corresponding payment of labor-management contributions, covers the medical services of both the employee and his or her beneficiaries, as well as the subsidies in cash and in kind to which they are entitled.
Pursuant to Section II of Article 42 of the Federal Labor Law, the disability caused by an accident or illness that does not constitute an occupational hazard temporarily suspends the employee’s obligation to render the service, as well as the employer’s obligation to cover the salary, without liability for either of them.
On the other hand, the Social Security Law establishes that, in the event of incapacity due to a non-occupational illness, the employee is entitled to a subsidy to be granted as from the fourth day of incapacity and for the duration of the incapacity. This subsidy will be equal to sixty percent of the last daily contribution salary.
Consequently, in cases of incapacity due to general illness, neither the employer nor the IMSS is obligated to cover the employee’s salary during the first 3 days of incapacity.
However, in spite of this lack of regulation, in practice there are several ways in which employers have paid attention to the payment of salary during the first 3 days of incapacity due to general illness. Here we describe each of them:
- Not making any type of payment: Due to the lack of legal obligation, the company stops making salary payments as soon as the disability is decreed.
- 100% payment: So that the worker does not lose economic support during these dates, the company pays 100% during the first 3 days of incapacity and once the delivery of the subsidy by the social security begins, the company contributes an additional 40% to this subsidy so that the worker receives the full amount of his salary in spite of the fact that the labor relationship is suspended.
- Payment of 60% of salaryIn some other cases, employers, although they are not obligated to do so, pay the worker 60% of his or her salary during the first 3 days of incapacity, which is the same amount that the worker will receive once the IMSS subsidy begins to be paid as of the fourth day.
In conclusion, whenever a disability is received due to a general illness or risk that is not work-related, it will be the company’s decision whether or not to pay the salary during the first 3 days of the disability. However, whichever path the Company chooses, it is essential to have a properly established and clear Labor Policy that sets out the process to be followed and the benefits to be granted. For this purpose, the Vega, Guerrero & Asociados team is available to provide the necessary support.
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