Among the obligations as an employer, according to the Federal Labor Law, is the granting of leaves of absence from work, in accordance with labor and social security regulations. One of these leaves is established in Article 140 Bis of the Social Security Law, aimed at employees who face the need to provide care and medical attention to their children under sixteen years of age diagnosed with cancer.
Under this provision, parents have the right to be absent from work for a period of up to 28 consecutive days, depending on the health needs of their child, and renewable as many times as necessary, within a period of three years. During this period, employees receive a subsidy equivalent to 60% of their base salary reported to the Mexican Social Security Institute.
To access this leave, the Mexican Social Security Institute (IMSS) may issue to one of the insured employee’s parents a certificate confirming the oncological diagnosis of the child and the duration of the corresponding treatment.
The purpose of such certificate at the same time is to guarantee that the employer is duly informed of the situation and allows the suspension of the labor relationship, in accordance with article 42 of the Federal Labor Law.
During the time of the leave, in attention to the suspension of the labor relationship, the employer will not be obliged to cover the payment of salary and the employee, will have the right to not attend to perform his work functions; however, this will not generate seniority in the employment, nor will the days of suspension be considered for the payment of vacations, vacation premium, Christmas bonus and profit sharing.
However, it is important to note that if an employee’s child is diagnosed with an illness other than cancer, such as a congenital, chronic, or terminal illness, the employee will not be entitled to the leave stipulated in article 140 Bis of the Social Security Law, since this is limited exclusively to the diagnosis of cancer.
Nevertheless, a possible reform to this article is being evaluated in order to broaden its scope to include any terminal illness diagnosed in minors.
Although a reform bill was presented on April 13th, 2023, by the Chamber of Deputies, it has not yet been voted on in the Senate.
In case you require support regarding the granting of the leave of absence contemplated in Article 140 BIS of the Social Security Law, the Vega, Guerrero & Asociados Labor Law team is at your entire disposal to advise you in the process.
