Even before the application of social distancing and confinement measures derived from the COVID-19 virus, various employers have resorted to the implementation and granting of permits or licenses so that the worker, for a period of time, stops providing their personal services to subordinates.
Now, as a starting point, it is important to note that the Federal Labor Law does not contemplate or foresee what is related to these permits, so we can understand that the nature of these arises through an agreement, contract, or voluntary agreement between the employer and employee.
This is why the guidelines on the granting of these permits must be contemplated in an internal policy of the company, in the internal work regulations, or even in the collective bargaining agreement. It is in these documents that the assumptions and specifications in which the licenses will be granted must be defined, especially their duration; They must consider whether they will be paid or without pay, if they will be granted derived from the celebration of the employee’s marriage, the death of a relative of his, by mere request or any other assumption.
Taking into consideration that the main effect of these permits is the non-provision of the contracted work, the anticipation with which the employee’s request must be made must be clearly contemplated in order to organize the work activity that the employee will stop performing and avoid Impacts on the productivity of the workplace.
Derived from the criteria issued by the Supreme Court of Justice of the Nation regarding this issue, we detail the outstanding points regarding the differences between a leave or leave without pay and one with pay.
1. With pay:
- They do not suspend the employment relationship since the salary continues to be covered.
- The generation of seniority is not stopped for the effect of vacations, holiday bonuses, and seniority bonuses.
2. Without pay:
- The labor relationship is suspended and not concluded as an atypical cause is configured to those contemplated in the Law.
- The generation of seniority is interrupted and consequently does not compute for terms of vacation payment, vacation premium, and seniority premium.
If you require support for the development and implementation of internal policies in the workplace that regulate the granting of this type of license, do not hesitate to contact the Vega, Guerrero & Asociados team, who will be able to provide you with the necessary support to give the due legal certainty to them, and thus avoid possible future contingencies.