10 de Agosto del 2018

DAYCARE FACILITIES, MATERNITY LEAVE AND WHAT COMPANIES IN EL SALVADOR SHOULD TAKE INTO ACCOUNT



By Sarah Payés – Associate LatamLex El Salvador (spayes@latamlex.com)

Article 42 of the Constitution of the Republic of El Salvador states: “The working woman shall have paid leave before and after birth, as well as job security. Legislation will regulate the employer’s obligations to install and maintain daycare centers.”{¿

From 2015 to 2016 three recourses of unconstitutionality by omission were furthers, being that at this time the Legislative Assembly had not generated a secondary law that guaranteed what was ordered by the Constitution. Faced with this, the 10th of November of 2017, the Constitutional Chamber issued a verdict in which the development of a special law would be created to regulate this omission.

This law has the objective of regulating the conditions under which employers will implement the services associated with daycare facilities. It was also determined that these provisions are applicable to the public and private sectors, as well as official autonomous institutions and municipalities, and in no case may they allege special regulations that exclude them from this obligation, and that those companies and institutions obligated to comply with this requirement will be those that have over 100 employees registered in their payroll.

 

What is daycare?

Daycare was defined as an establishment or physical space located inside or outside the work center, in said place the employee must be provided with the proper conditions in which to feed their child, but moreover the minors must be cared for by individuals specifically qualified for this task. This benefit can be used by the employees, and their children, from the end of their postnatal rest period up until three years of age. The means by which this requirement can be complied with is exposed in three ways


  1. The installation and maintenance of a daycare center in a place attached or independent of the work place, but within the same geographic area.

  2. A joint daycare center established with other companies.

  3. Payment to already established daycare centers who will provide this service regularly and professionally and are independent entities from that of the company.


When it is impossible for the employer to implement any of these means of compliance they may come to an agreement with the employee regarding another manner of care, but it is prohibited to provide the monetary equivalent, or any other means of compensation to the employee to skip compliance with this requirement.

Which institutions will inspect available daycare facilities?

The institutions involved in compliance with this law will be the Ministry of Labor, whose task will be to inspect compliance with the law, the National Counsel for Childhood and Adolescence (CONNA) in a joint effort with the Salvadorian Institute for the integral development of Childhood and Adolescence (ISNA) will verify the state of the daycare facilities in any of the established fashions, as well as those in charge of them.

Legal Pitfalls

The law appears to cover the necessary points to guarantee compliance with Article 42, however, there are a series of legal pitfalls that must be remedied. For example, the type of employees which can partake in the use of daycare centers is not specified, if they must be fulltime employees, part time, or temporary without distinction. There is also no reference made to whether temporary or part time employees can use the daycare centers with the same frequency as others. There are no regulations regarding the procedure when an employer has numerous branches. There is also no specification regarding the infrastructure or resources that must be available at the daycare centers or what to do in case an employee’s child requires specialized assistance, in case they may require it. Furthermore, there are pitfalls related to the matter of sanctions, while the law indicates that there will be sanctions between 5 to 8 minimum wages of the existing commercial and service sectors, it is not clear if these will be daily or monthly.

The law was published in the Official Newsletter this past 19th of June, however, it does not enter into effect until June 19th of 2020 in order to allow companies to include the associated costs to their yearly budgets. The Presidency of the Republic will have up to 120 working days after the law enters into effect to generate a regulation which remedies the legal pitfalls, for which it is the task of the Executive to ensure that this regulation not only complies with Article 42 but also denotes an integral solution to the pitfalls in the law.

Extended maternity leave for pregnant women

Another factor that must be considered by employers is the extension of maternity leave. This past June 26th the Legislative Assembly issued decree number 41 by which they reformed Article 113 of the Labor Code which protects pregnant women from being fired after their maternity leave ends. Thanks to a reform of the Labor Code made in 2015 it was determined that maternity leave for pregnant women would have a duration of 16 weeks (equivalent to 4 months), which is law as of February 23rd of 2016. The ruling mentioned previously approved an extension of the maternity leave for an additional 6 months after the initial period of leave for a total of 10 months. Said decree was published in the Official Newsletter number 132, Tome 418, of the 17th of July 2018.








©2014 ALL RIGHTS RESERVED BY LATAMLEX

POLICIES & RESTRICTIONS