Mexico: Declaration of Absence of Missing Persons Amends provisions of the Labour Law and the Social Security Law
On June 22, 2018, it was published in the Official Gazette the Decree through which the Federal Law on the Declaration of Absence of Missing Persons (the “Law”) is issued and several provisions of the Mexican Labour Law (the “MLL”) and the Social Security Law (the “SSL”) are amended.
Besides establishing the federal procedure for the issuance of the Special Declaration of Absence, the Law has as purpose acknowledging, protecting and guaranteeing the legal personality of the Missing Person, providing legal certainty to the representation of her/his interests and granting appropriate measures to ensure the amplest protection to her/his relatives.
‘Missing person’ must be understood as “… the person whose whereabouts is unknown, and it is presumed, from any trace, that her/his absence is related with the commission of a crime.
The Law protects the Missing Persons’ labour rights as follows:
- The Missing Person will be considered in situation of unpaid leave. If the person were located alive, the employer must be reinstalled in her/his job position. This obligation will last for 5 years, after which the employer will have no liability.
- If the Missing Person is located alive, she/he will resume her/his position, scale and seniority rights according to applicable laws.
- Payments derived from loans for housing acquisition.
Regarding numbers 2, 3 and 4, protective measures will be kept until the Missing Person is located alive or not.
The Federation will be in charge of guaranteeing the continuance of the protections provided in numbers 3 and 4.
Besides amending the MLL in line with the principles described above, the Decree added the SSL with the purpose that the beneficiaries of those employees who are Missing Persons and have a Special Declaration of Absence keep their right to receive medical, maternity, surgical, pharmaceutical assistance and hospital care and the funds in the employee’s Retirement Account are made available to the Missing Person’s beneficiaries.
The Law entered into force on the date following its publication.
The Mexican Institute of Social Security (the “IMSS”) and other social security institutions must adequate their internal regulations during the 6 months following the issuance of the Decree.