Mexico has introduced a pilot scheme that will give domestic employees access to social security benefits and protections enjoyed by other employees.
Author: Gil Zenteno Garcia, Santiago Villanueva Durán
Firm: Basham, Ringe y Correa SC
The Mexican Social Security Institute (IMSS) is the authority in charge of providing employee health services, medical assistance, protection of subsistence and social services for individual and collective wellbeing, as well as granting pensions that are guaranteed by the Federal Government.
For employees to be entitled to these services, their employers are obliged to enroll them in the Mandatory Social Security Regime established in the Social Security Law (LSS), which covers the following insurance risks:
- labour-related risks;
- disability and life insurance;
- illness and maternity;
- childcare and social services.
The costs generated by this Mandatory Regime are covered by the IMSS through social security charges that are funded by a combination of three contributions:
- the employee contributes through a percentage that the employer withholds from his or her salary;
- the employer pays a certain percentage proportionate to the base salary of the employee's contribution;
- there is a Federal Government contribution.
For domestic employees, the Federal Labor Law (LFT) establishes the basis of labour relations between workers in this sector and their employers.
The LFT defines the concept of a domestic job as the provision of cleaning services, assistance and other tasks related to the home of an individual or a family, which can be carried out full time (over an eight-hour day). Workers who do these tasks can provide their services to a single employer or several employers.
As regards employers’ obligations, LFT does not provide for registration of their domestic employees to the IMSS Mandatory Regime. It only states that employers must provide accommodation, food, pay their domestic worker’s salary and in the event of their employee’s illness, cover up to one month’s salary. In cases of chronic illness the employer must also pay for medical assistance for up to three months and, in the event of death, the employer will cover funeral expenses.
The LSS does not create any obligation on employers to register their domestic employees to the Mandatory Social Security Regime. Their rights are limited to the benefits established by the LFT, leaving them in a vulnerable state because they do not enjoy the benefits of social security protection.
In Mexico, approximately 2,335,000 people work as domestic employees, of whom about 95% are women, mostly of indigenous origin.
The lack of recognition of labour rights, uncompetitive salaries and ethnic discrimination led the Supreme Court of Justice of the Nation to state:
‘(....) there is no constitutionally valid reason why the Federal Labor Law and the Social Security Law excludes domestic jobs from the mandatory social security system, which leads to unfair discrimination against these employees (...).’
For this reason, the Mexican Supreme Court of Justice recently issued a decision that ordered the IMSS to establish a ‘Pilot Program’ guaranteeing domestic employees access to social security benefits on equal terms with other employees.
With the implementation of this Program, people who work in domestic tasks can register with the IMSS and can appoint relatives as beneficiaries, who can also benefit from medical services, hospital care, pharmacists, obstetric care, disability insurance, disability pensions and life insurance, funds for retirement and social benefits such as funeral services and childcare.
This Pilot Program is not regulated in the SSL, so it is not currently mandatory for employers to register their domestic employees in it. However, in the medium term the results of the Pilot Program will be evaluated so the Federal Government can propose a reform to the law establishing an obligation on employers to register their domestic employees with the IMSS.
In order to have access to the Pilot Program, domestic employees must apply to the IMSS for their Social Security Number and registration, and must report their monthly salary, whether they work for one or more employers, and how many days they work for each one.
Once the employee is registered, the IMSS will calculate, where the domestic employee works for several employers, how much each employer must pay in social security charges and the IMSS will issue an invoice for this amount monthly to be paid into the appropriate banking institution within the first 20 days of each month. Subsequently, the employee must register at the relevant IMSS hospital or clinic for his or her address in order to be entitled to the services provided by that institution.
Unlike the Mandatory Social Security Regime, the Pilot Program does not establish if it is the employer alone who pays social security fees or whether it is split three ways as for other employers, nor does it stipulate the way in which the domestic employee’s salary is determined.
Equally, the Pilot Program does not impose an obligation on employers to register and to register their domestic employees with the IMSS, reporting their base salary to determine the level of social security charges payable. Nor does it impose penalties for non-compliance.
Nevertheless, by seeking to ensure that domestic employees are entitled to social security, we consider that this Program is an indication of good faith and goodwill in Mexican society. Although it lacks clarity, with the implementation of the Pilot Program, this group of employees, whose rights must be recognised and guaranteed in the SSL, will gain significant recognition. It is also an important step toward individual equality and fundamental rights.