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Reforma Laboral – Trabajadores del Hogar

El 02 de julio de 2019 se publicó en el Diario Oficial de la Federación (“DOF”) el decreto de reforma a la Ley Federal del Trabajo (“LFT”) y a la Ley del Seguro Social (“LSS”) en materia de personas trabajadoras del hogar (“Trabajador del Hogar”).

Los aspectos más relevantes de la reforma incluyen:

1. Se define al Trabajador del Hogar como aquel que de manera remunerada realice actividades de cuidados, aseo, asistencia o cualquier otra actividad inherente al hogar que no implique para la persona empleadora (en adelante “Empleador”) un beneficio económico directo.

No se considerará Trabajador del Hogar a quien:

  •  Realice trabajos del hogar únicamente de forma ocasional o esporádica; y
  •  Preste servicios de aseo, asistencia, atención de clientes y otros semejantes, en hoteles, casas de asistencia, restaurantes, fondas, bares, hospitales, sanatorios, colegios, internados y otros establecimientos análogos.

2.  Se establecen 3 modalidades de Trabajador del Hogar:

  •  Los que trabajan para un Empleador y residen en su domicilio.

Estos trabajadores tendrán los siguientes derechos adicionales:

  •  Descanso mínimo nocturno de 9 horas consecutivas, y de 3 horas entre las actividades matutinas y vespertinas. El tiempo que no puedan disponer libremente se considerará como horas extras;
  •  Jornada diaria diurna máxima de 8 horas; y
  •  Habitación.
  •  Los que trabajan para un Empleador y no residen en su domicilio; y
  •  Los que trabajan para diferentes Empleadores y no residen en el domicilio de ninguno de ellos.

3. Se prohíbe la contratación de adolescentes menores de 15 años.

4. Para la contratación de adolescentes mayores de 15 años y menores de 18 años (“Menores”), se establecen las siguientes obligaciones adicionales para los Empleadores, mismas que            quedarán sujetas a la supervisión de la autoridad laboral competente:

  •  Solicitar certificado médico por lo menos 2 veces al año;
  •  Las jornadas de trabajo no podrán exceder de 6 horas diarias y de 36 horas semanales;
  •  Se prohíbe la contratación de Menores que no hayan concluido la educación secundaria, salvo que el Empleador se encargue de que la finalicen; y
  •  En el caso de Menores que trabajen para un Empleador y residan en su domicilio, deberá garantizarse que el espacio donde pernocten sea seguro.

5. El trabajo del hogar deberá formalizarse mediante contrato por escrito. Tanto en la contratación como durante la relación laboral queda prohibido todo tipo de discriminación así                como cualquier trato que vulnere la dignidad de los Trabajadores del Hogar.

6. Se prohíbe solicitar constancias de no embarazo para la contratación de Trabajadoras del Hogar. Además, no podrá despedirse a aquellas que estén embarazadas y, de hacerlo, el                despido se presumirá como discriminación.

7. Los Empleadores deberán proporcionar alimentos a los Trabajadores del Hogar. Éstos deberán ser de la misma calidad y cantidad que los que consuma el Empleador.

8. Se permite el pago del salario a los Trabajadores del Hogar mediante transferencia bancaria o cualquier otro medio legal, previo consentimiento del trabajador.

9. Los Trabajadores del Hogar tendrán derecho a las siguientes prestaciones, en los términos de la LFT y de la LSS:

  •  Vacaciones;
  •  Prima vacacional;
  •  Aguinaldo;
  •  Descanso semanal de día y medio ininterrumpido con goce de salario (preferiblemente en Sábado y Domingo);
  •  Días de descanso obligatorio con goce de salario;
  •  En caso de que se laboren los días de descanso, deberán pagarse en los términos de la LFT; y
  •  Acceso obligatorio a la seguridad social.

10. Se considerará despido injustificado de los Trabajadores del Hogar aquellos que se den por motivos de violencia de género en el trabajo de manera explícita, y por discriminación.

11. Los Trabajadores del Hogar podrán dar por terminada la relación de trabajo en cualquier momento, pero deberán dar aviso al Empleador con 8 días de anticipación.

12. El Empleador puede dar por terminada la relación laboral en cualquier momento, dando aviso al Trabajador del Hogar con 8 días de anticipación y pagando las indemnizaciones correspondientes.

13. Se incluye a los Trabajadores del Hogar como sujetos de aseguramiento del régimen obligatorio para efectos del IMSS.

14. Las disposiciones relativas a la incorporación formal de los Trabajadores del Hogar al régimen obligatorio de seguridad social iniciarán su vigencia una vez que se realicen las adecuaciones y reservas legales necesarias para la operatividad del reconocimiento de ese derecho, mismas que deberán concluirse a más tardar el 31 de marzo de 2021.

En el ínter, el Empleador estará obligado a garantizar la atención médica y a cubrir los gastos de sepelio en caso de muerte del Trabajador del Hogar.

15. Los Artículos Transitorios no hacen referencia a la fecha en que entrarán en vigor el resto de las disposiciones de la Reforma. Por ello, supletoriamente debe entenderse que entrarán en vigor 3 días después de su publicación en el DOF, conforme a lo dispuesto por el Artículo 3 del Código Civil Federal (esto es, a partir del 5 de julio de 2019).

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