Approval of Law to install and maintain nurseries for employees' children.

On May 31, 2018, the Legislative Assembly during a plenary session approved the “Special Law for the regulation and installation of nurseries for sons and daughters of workers”, applicable to workers in the public and private sectors.

The Law was approved based on the mandate established in article 42, paragraph 2 of the Constitution of the Republic, in force since 1983, taken up by the Constitutional Chamber of the Supreme Court of Justice when declaring “unconstitutionality by omission” on the part of the Legislative Assembly, which imposed a period of 6 months to issue the regulations, which expired precisely on May 31, 2018.

Art. 42.- Working women will have the right to paid rest before and after childbirth, and to retain employment.

The laws will regulate the obligation of employers to install and maintain nurseries and places of custody for workers' children.

The Law contains 15 articles and regulates the right of workers to daycare centers and places of custody for their sons and daughters, ranging from 4 months to 3 years, during the duration of their father's or mother's working day.

According to the approved regulations, autonomous official institutions, municipalities and companies with 100 or more workers will be obliged to comply with this benefit, being empowered to define the modalities through which they will comply with the law, and the worker to take advantage of the modality implemented by the employer.

The most relevant points are the following:

• This law recognizes the right of workers to enjoy the provision of nurseries and custody places.
• Nurseries or places of custody are defined as an establishment or physical space within the company or outside it, in which the worker can feed his or her children from 4 months to 3 years of age, at the same time. leave them under the supervision and supervision of a person trained for this purpose, during the working day, meaning daytime or nighttime, overtime, etc.
• The scope of application of the law includes the public sector, autonomous and municipal official institutions and private companies. In this regard, the law states that an employer will be obliged to guarantee the exercise of this right when it has 100 or more workers. However, if the worker does not want to use these care places, he has the freedom not to do so, the employer will not have the obligation to compensate him for the benefit.
• The nursery must not necessarily be within the company, since according to the Law it may be within the workplace or in a different place, “within the same geographical area.” The modalities of compliance with the law are:

1. Install and maintain daycare centers and custody places in a place attached and independent of the workplace within the same geographical area, in which case the costs of hiring trained personnel and enabling the center will be borne by the employer.
2. Through the installation and maintenance of a common nursery and custody center, which is paid for by several companies or work establishments.
3. Through the payment of daycare centers and custody places that provide such services independently of the company or work establishment in a professional and regular manner decided by the employer.

• The nurseries or places of custody must meet basic conditions in terms of space, health, control and equipment, but these "may vary depending on the size and number of boys and girls they house", in addition they must adopt measures to guarantee care in "optimal conditions".
• Employees may use the benefit, as long as they meet the requirements of the law and the admission of establishment of nurseries or places of custody.
• Companies that do not comply with the provisions of the law may be subject to a fine from the Ministry of Labor and Social Security that would range between five and eight minimum wages in the commercial sector depending on the economic capacity of the employer. However, if the delay in installation is not attributable to the employer, the fine is not applicable.
• The construction and equipment costs of installing the nursery in the company or of installing a joint room for several companies will be deductible from income tax.
• The benefit must operate 24 months after the Law is published in the Official Gazette, that is, if the president sanctions the law, Its validity would begin in 2020.

The President of the Republic also has 4 months to decree the Regulations of the Law, which will provide guidelines for the application of the law in relation to requirements, permits, etc.

*About the Author: Beatriz Merino is a Lawyer and Notary, she has an Advanced Master's Degree in Legal Sciences from the Pompeu Fabra University in Barcelona, Author of the Master's Thesis “Corporate Social Responsibility and Social Rights”, she is an Associate Lawyer and Coordinator of the Labor Unit of the Firm Romero Pineda & Asociados and professor at different universities in the country.