Special Declaration of Absence

On June 22, 2018, the Federal Official Gazette published the executive order issuing the Federal Law regarding Special Declaration of Absence for Missing Persons in which several legal provisions of the Federal Labor Law; Federal Law of Employees rendering services to the State, Social Security Law, Government Employees´ Security and Social Services Institute Law; General Law for Negotiable Instruments and Credit Operations; Financial Institutions Law, and Agrarian Law were amended. This amendment is effective as of June 23, 2018.

The creation of the Federal Law regarding Special Declaration of Absence for Missing Persons was enacted to set the guidelines, implications, procedures and rights as a result of missing persons, as well as the labor and social security implications of the declaration of absence.

It also establishes the procedure for the Special Declaration of Absence, which shall not delay more than 6 months. The Special Declaration of Absence may be requested after 3 months as of the report to authorities of the missing person or of the filing of the complaint before the National Commission of Human Rights. The request of the Special Declaration of Absence should include, among others, the activity performed by the missing person, as well as the name and address of the employer and information of his/her social security regime.

In terms of social security, the main effect of the Special Declaration of Absence is that the beneficiaries of the missing person continues to enjoy the rights and benefits applicable to the social security regime derived from the employment of the missing person.

On the other hand, the Special Declaration of Absence will protect the rights of the missing person in the following terms:

  • The missing person will be considered in an unpaid leave of absence during a specific term.
  • In the event that the victim is located alive, the employer shall reinstate the employee in his/her prior position and rights before disappearing.
  • Regarding social security, beneficiaries will be recognized and will maintain the applicable rights and benefits until the missing person is located death or alive.
  • Payments to the credit for the acquisition of homes will be suspended. This protection will be maintained until the missing person is located alive or not.

Likewise, the Federal Labor Law as well as the Social Security Law were amended, the most relevant modifications are:

  • The disappearance derived from a criminal act, produced suddenly while working or related to work activities, will be considered as a work-related accident.
  • The employer has the obligation to grant an unpaid leave of absence to the missing employee with a Special Declaration of Absence.
  • The employer is prohibited to terminate an employment relationship, if the employee has the status of missing person and has a Special Declaration of Absence.
  • In the case of disappearance derived from a criminal act, the employee´s beneficiaries will be entitled to receive compensation.
  • In the case of a missing person who has Special Declaration of Absence, the employee´s beneficiaries will maintain the right to receive medical and maternity assistance, surgical, pharmaceutical and hospital care.
  • When the employee is a missing person and a Special Declaration of Absence was issued, the resources of his/her individual social security account will be available to the beneficiaries.

Derived from the aforementioned amendments, there is no certainty about the labor and social security implications that could exist in different circumstances therefore we suggest that each situation is analyzed in a case-to-case basis.

Our Hogan Lovells team will be glad to assist with any doubts or comments regarding this matter.