One of the social groups that have suffered the most from job vulnerability and uncertainty in Mexico are domestic workers. To be more precise, women domestic workers. In a society marked by serious inequalities, domestic workers have been carrying out their work in more precarious and informal working conditions than any other type of occupation; seriously limiting their access to better benefits and the right to social security. At least, that was the case until now.
In an act of social justice, on January 28, 2019, the Second Chamber of the Supreme Court of Justice of the Nation (SCJN), notified the Mexican Institute of Social Security (IMSS), the enforcement of Amparo Directo 9/2018, in which it decreed the unconstitutionality of article 13, section II, of the Social Security Law (LSS), by excluding domestic workers from the mandatory social security regime, because it was a provision that was discriminatory and violated the right of social security. Let us remember that their incorporation into social security was voluntary (so no one insured them, to the detriment of their rights).
Given the systematic violation of this social security right, the SCJN ordered the IMSS to implement a pilot program whose purpose was to design and execute a special social security regime for all (and all) domestic workers. Additionally, on July 2, 2019, the Federal Labor Law and the Social Security Law were reformed, precisely, to incorporate domestic workers into the mandatory social security regime, in compliance with the resolution of the SCJN. But a legislative change was not enough. It was necessary to make the necessary material adjustments so that the IMSS could assume the operational and budgetary impact that the incorporation of domestic workers represents.
For this reason, in the Third Transitory article of the 2019 reform, it was established that the obligations of formal incorporation of domestic workers into the mandatory social security regime, would begin to be in force, once the adjustments and legal reservations have been made. necessary, to make the recognition of the right to social security operational, and must be fully concluded within a period of no more than 6 months, counted from the completion of the Pilot Program.
The date arrived. It took more than three years, but it arrived. On November 16, 2022, the DECREE was published in the DOF, which reforms, adds, and repeals various provisions of the Social Security Law, regarding domestic workers. What does this imply? That as of November 17, 2022, the reforms and additions to the Social Security Law published in the DOF, on July 2, 2019, enter into force. That is, it is already mandatory to register workers in the home on social security.
According to the National Survey of Occupation and Employment (ENOE), of the National Institute of Statistics and Geography (INEGI), as of the first quarter of 2021, an estimated 2.2 million people (aged 15 and over) were employed in public sector work. household, which represented 4% of the total employed persons in the country at said quarter. 88% of them are women. Unfortunately, it is an informal job. This means that 96% of all domestic workers do not have access to social security and 70% do not have benefits. This has to change, because now its insurance is mandatory.
Through the new insurance scheme, domestic workers (finally) will be able to have access to the five insurances provided by the Social Security Law:
- Disease and maternity insurance (medical, pharmaceutical and hospital care, for the insured person, as well as their relatives, as well as the payment of sick leave);
- Occupational risk insurance (medical, pharmaceutical and hospital care for the insured, as well as rehabilitation and prosthesis; as well as payment of disabilities due to work-related accidents and illnesses; and pension, if applicable);
- Disability and life insurance (pension in case of disability for the insured and for legal beneficiaries in debt to the insured);
- Unemployment insurance in old age and old age (savings for pension); Y
- Nursery insurance and social benefits (children’s stays for the care of minors and recreational sports and cultural activities).
Historically, domestic workers have worked without these insurances. Of this magnitude was the inequality suffered by domestic workers, lacking access to the right to social security. That was the size of her vulnerability. The injustice to them and their families was of that dimension.
In addition to the insurance obligation, the new legislation provides for a more flexible regime so that employers can comply with their obligation (without pretexts), as the Opinion on the LSS reform itself, published in the Parliamentary Gazette, warns. For example, according to article 239-C, of the LSS, it will not be necessary to have an employer registry, nor to fill out the Work Risk Insurance form; the system will assign it automatically and the risk premium will remain constant, so employers will not be increased in quotas due to the risks that occur (unlike what happens with employers of the general regime). The application will allow affiliatory movements to be made in a simplified way.
Another relevant aspect is that the employer will not calculate their contributions, because the system will perform the calculations for the employer contribution and the one that corresponds to the person who works in the home. The registration data will only be captured in the initial registration; in subsequent prepayment periods, it will suffice to make the payment based on the capture line issued automatically by the IMSS. By operating a simplified scheme, there will be no self-determination, unlike the general regime. With this, it seeks to facilitate the registration of people and the payment of social security contributions.
According to the aforementioned Opinion, a post-payment scheme will be established for those cases in which the coverage of the domestic worker begins (that is, who had no social security coverage in the month preceding the entry into force of of the reform, under the scheme of the pilot program). Immediately after the initial postpayment, the form of payment will be changed to prepaid and as an administrative facility it will also be enabled for monthly, bimonthly, semiannual and annual payments in advance. Workers will have effective insurance from the first day.
According to these legal and administrative changes, the legal obligation of insurance is already a reality, now it is up to us as a society, to comply with this important social security right of domestic workers
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