In Chapter II, Title Ninth of the Federal Labor Law, the definitions of work risks, work accidents, commuting accidents and professional illness are established.

Occupational risks are the accidents and illnesses to which employees are exposed while exercising or due to work.

Occupational risks can produce:

* Temporary disability.

* Partial permanent disability.

* Total permanent disability.

* Death.

* Disappearance derived from a criminal act (this in accordance with the last labor amendment of 2019)

Occupational accidents refer to any organic injury or functional disturbance, immediate or subsequent, death or disappearance resulting from a criminal act, produced suddenly while exercising or due to work, whatever the place and time in which it occurs. Included in this category are accidents that occur when the employee moves directly from his/her home to the workplace and from the workplace to his/her home. Such accidents are better known as commuting accidents.

Finally, occupational illness is any pathological state derived from the continued action of a cause that has its origin or reason at work.

On the other hand, the employer is responsible for the safety and hygiene and the prevention of work risks. In turn, employees have the obligation to observe and comply with all preventive safety and hygiene measures established in accordance with applicable Laws and Official Mexican Standards.

In Title II of the mandatory regime of the Social Security Law (LSS), it is established that employers are obliged to register and enroll their employees in the Mexican Institute of Social Security (IMSS), communicate their registrations and terminations, as well as salary changes, within a period of five working days.

Therefore, the employee shall be affiliated before the IMSS, since if an accident at work occurs and the employee is not affiliated, the employer will be entitled to a constitutive capital, according to the rules of the IMSS. Additionally, the employer will be subject to a penalty ranging from 20 to 350 times the value of the Measurement and Updating Unit (UMA).

It is very important to mention that, according to the LSS, any of the following causes will not be considered occupational risk:

* If the accident occurs while the employee is intoxicated.

* If the accident occurs while the employee is under some psychotropic, narcotic or enervating drug, unless there is a prescription signed by a qualified doctor and the employee had exhibited it and made it known to the employer or the representatives of the latter.

* If the employee intentionally causes a disability or injury by himself or in agreement with another person.

* If the disability or accident is the result of a fight or suicide attempt.

* If the claim is the result of an intentional crime for which the insured employee was responsible

In statistics from the Unit of Economic Benefits and Health at Work (DPST) of the IMSS, in 2019 the average of: (i) work risks was 2.8%; (ii) work accidents, 2%; (iii) commuting accidents, 0.7%; and (iv) occupational diseases, 6.7%. These averages are annual and are calculated for every 100 employees. Likewise, there was a total of 1,348 annual deaths, among which the groups between 25 and 50 years of age predominated.

It is worth mentioning that employers are required to calculate their risk premium annually through the Single Self-Determination System (SUA), comparing the previous premium with the new one, determining whether it remains the same, increases or decreases. The new premium may not be modified in a proportion greater or less than 1% in the field of occupational risk insurance and will be valid as of March 1st to the last day of February of the following year. If throughout the year no accidents or occupational diseases occure, employers can save the payment of that 1%, instead of having to pay for the increase in work risks. This constitutes an incentive for employers to avoid accidents at work, which is possible. Occupational accidents and illnesses can be foreseen based on a good work plan, through which working conditions, personal protective equipment, ergonomic conditions of employees, suspended particles within the workplace, among others, can be analyzed.

At Trejo Gutiérrez Abogados, we have a group of experts in labor matters with more than 20 years in the market. Please do not hesitate to contact us, we will be glad to provide the personalized legal advice that you require.