A recurring question raised by employers and company Human Resources teams is: is a medical prescription issued by a private physician sufficient to justify an absence?
The straightforward answer is no. We will now explain why.
The Federal Labor Law establishes that it is the employee’s obligation to render the contracted service and, in turn, it is the employer’s obligation to pay the salary for such service. Therefore, when the employee does not show up for work, the employer will obviously not be obligated to pay that salary. Likewise, Article 47 of the Federal Labor Law, Section X, states that when the employee has at least four absences without permission from the employer or without just cause within a period of 30 days, the employer may terminate the employee’s contract without further liability.
For this reason, it is important to know how to justify a fault. For this purpose, we must refer to Article 42 of the Labor Law, which establishes that a temporary disability of the employee will suspend the labor relationship and, therefore, the obligation to render the service and pay the salary. Therefore, when this incapacity exists, although the service will not be rendered, there will not be an affectation to the worker for absences generated as a result of this incapacity.
On the other hand, Articles 137 and 138 of the Medical Benefits Regulations of the Mexican Social Security Institute (IMSS) establish that a disability is considered to exist when there is a loss of physical or mental faculties or aptitudes that make it partially or totally impossible for the worker to perform his/her work for a period of time. In addition, they state that the certificate of temporary disability for work is the legal medical document issued in official formats by the doctor assigned to the IMSS to certify the inability to work, and when issued it will produce the corresponding legal effects for the protection of the worker.
Therefore, the law clearly establishes that the employee’s incapacity or inability to perform his or her activities due to various ailments must always be documented through certifications issued by IMSS medical personnel. Therefore, those medical prescriptions or incapacities issued by private physicians will not have the same legal effects and, therefore, employers are not obliged to recognize such documents.
It is also important to point out that if the company agrees to validate medical certificates issued by private physicians, it must state this in its internal regulations. This will provide certainty to both the employer and the workforce as to the mechanisms to be followed in cases where justification for absences is sought.
The Vega, Guerrero & Asociados labor team is at your service to provide the corresponding support for the regulatory adjustments required by your company regarding this particular issue.
