Resolution ACDO.AS2.HCT.151220/340.P.DPES by the H. Technical Council of the Mexican Social Security Institute, issued in an ordinary session held on December 15, 2020.
This resolution reached by the Technical Council of the Mexican Social Security Institute was published on January 8 of this year in the Official Gazette of the Federation, establishing, in Decision One:
“The Directorate of Economic and Social Benefits is authorized to implement the strategy of proactive ruling as an occupational hazard of workers at affiliated companies who have died or who have sequelae as a consequence of having suffered a severe form of COVID-19 during the contingency period. The strategy must be carried out until the end of the health emergency declared by the General Health Council through a Resolution published in the Official Gazette of the Federation on March 30, 2020.”
This resolution could have serious repercussions for companies, because in the event that the IMSS rules the cases of affiliated workers affected by COVID-19 as occupational hazards, this will have an impact on the determination of the work hazard insurance premium, with the consequent impact on the payment of employer’s fees in this area of insurance.
In our opinion, this resolution has no legal basis, considering that occupational disease, in terms of Article 475 of the Labor Law is:
“Article 475.- Occupational disease is any pathological state deriving from the continued action of a cause that has its origin or motive in the work or in the environment in which the worker has the obligation of providing his services.”
That is, the occupational disease derives from the very nature of the economic activity of the company and not from the health contingency, since it is unconnected to the employer.
On the other hand, occupational diseases are listed in the table included in Article 513 of the Federal Labor Law and the only authority that can update this table is the Department of Labor and not the Mexican Social Security Institute, in terms of the first paragraph of said article; furthermore, in accordance with Article 515 of the Federal Labor Law, prior to its update, the Department of Labor and Social Welfare must conduct the necessary research and studies so the President of the Republic may initiate, before the Legislative Power, the periodic adaptation of the tables referred to in Articles 513 and 514 of the aforementioned law.
Given all of the above, the cited resolution reached by the Technical Council of the Mexican Social Security Institute has no legal basis. Faced with the proximity of the employers’ obligation to present, in the month of February, 2021, the annual declaration for the self-determination of the insurance premium for occupational hazards, which will remain in force from March 1, 2021 until the last day of February of 2022, it is pertinent that employers analyze the problems that could arise in the event that the cases of affiliated workers affected by COVID-19 could be considered as occupational hazards. Employers must analyze their activities and those of their workers in order to define the best strategy in light of the intention of the IMSS to rule the ailments of workers affected by COVID-19 as occupational hazards.
Furthermore, the existing means for challenging any action by the IMSS that qualifies the disease as an occupational hazard or that rectifies the premium declared by the company for said period must be kept in mind. The challenge can be made through an appeal for reconsideration provided for in the Social Security Law or, otherwise, through an action for annulment before the Federal Court of Administrative Justice.
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