The Legislative Assembly approved in plenary session of May 31st, 2018, the “Special law for the regulation and installation of nurseries for employee´s children” which was published in Official Gazette No. 112, volume No. 419 dated June 19, 2018.
The aforementioned law enters into force in June 2020, being applicable for employees in the public and private sectors.
This law was issued after the Constitutional Chamber of the Supreme Court of Justice declared “unconstitutionality by omission” by the Legislative Assembly, for not having dictated regulations concerning the constitutional mandate established in article 42 second paragraph of the Constitution, for which it was imposed a 6 months period, which expired on May 31, 2018, to issue the dispositions that regulate everything related to the obligation of the employers to install and maintain nurseries and daycare for the children of the employees.
Art. 42.- The working woman will have the right to a paid rest before and after childbirth, and to the preservation of employment.
The laws will regulate the obligation of employers to install and maintain nursery rooms and places of custody for employees’ children.
The Law contains 15 articles and regulates the right of employees to have nurseries and daycare for their children, from the end of the postnatal period (currently 4 months) until 3 years old, during their parents working shift
The most relevant points are the following:
- This law recognizes the right of employees to have access to nurseries and daycare for their children and all of its benefits.
- Nurseries and daycare are defined as an establishment or physical space within or outside the company´s premises, in which the worker can feed their children from the age of 4 months up to 3 years of age (without differentiating if there are children who require special care), as well as leaving them under the supervision and care of a person trained for this purpose, during the working day (therefore it would include day or night shift, overtime, etc.).
- The scope of the law includes the public sector, autonomous state entities, municipal institutions and private companies.
- An employer will be required to comply with this benefit when he has 100 or more employees. However, if an employee does not want to use these benefit, has the freedom not to do so and the employer will not be obliged to economically compensate for the benefit.
- The nursery does not have to be within the company´s premises, since the Law allows having it within the workplace or in a different place, “within the same geographical area”.
- The employer has the power to define the modalities through which he will comply with the law, and the employee must comply with the modality implemented by the employer. The modalities of compliance with the law are:
- Install and maintain Nurseries and daycare in an annexed of the company and separate to the workplace within the same geographical area, in which case the costs of hiring trained personnel and the authorization of the center will be taken care of by the employer.
- Through the installation and maintenance of a common center of nursery and daycare, paid by several companies or work establishments.
- Through the payment of Nurseries and daycare that provide such services independently to the company or work establishment in a professional and habitual manner that the employer decides.
The costs that these centers incur that are exclusively in the concept of care and supervision of the children, will be paid directly by the employer to said Nurseries and daycare that provide the service.
- Nurseries and daycare must meet basic standards in terms of space, health, control and equipment, but these “may vary according to the size and number of children they shelter”, and must adopt certain measures to ensure nursing in “optimal conditions”. However this law does not establish what these conditions are.
- Employees will be able to make use of the benefit, as long as they meet the law requirements and admission of establishment of said Nurseries and daycare.
- Companies that do not comply with the provisions of the law may be entitled to a fine by the Ministry of Labor and Social Security that would range between five to eight minimum wages in the commerce sector according to the employer’s economic capacity. However, if the installation delay is not attributable to the employer, the fine is not applicable.
- The costs of construction and equipment to install the nursery in the company or to install a common center of several companies will be deductible from income tax.
- The President of the Republic has not yet decreed the Regulations of this Law, which must provide guidelines for the application of the law in relation to requirements, permits, etc.
For more information and legal assistance on the terms, modalities and conditions of compliance, please feel free to contact Beatriz Merino, Coordinator of the Labor Unit at (503) 2505-5555 or email email@example.com.
We will be pleased to assist you.