By: Carlos Rodríguez and Nicole Larios
The purpose of this law is to guarantee the conditions to promote, protect, support and prioritize breastfeeding, promoting health, safe and sufficient nutrition, optimal growth and development of the infant, as well as the protection and stimulation of early bonds and the prevention of violence.
This law was approved in plenary session on September 27, 2022, was published in the Official Gazette on October 14 of the current year, and will enter into force 8 days after the referred publication. Its Regulations must be updated in a term no longer than 180 working days from the date of its entry into force.
The Law Love Converted into Food for the Promotion, Protection and Support of Breastfeeding repeals the Law for the Promotion, Protection and Support of Breastfeeding that we have been applying since August 2013.
One of the main impacts that this law will have when it enters into force is in the provisions of its Art. 36 inc. 4, which establishes that employers are obliged to establish a breastfeeding room within the work space so that mothers can express and preserve breast milk.
Regarding this new obligation to be implemented by public and private sector employers, in order to comply with the new regulations, they are obliged to provide lactation rooms within the workplace, clarifying that these rooms must be an exclusive, comfortable, private, hygienic and accessible area, which ensures its proper functioning in places where women of childbearing age, pregnant and breastfeeding women are working, including those women who may visit the workplace.
Once the lactation room is installed, it must be authorized by the Ministry of Health (which will have a Registry of authorized rooms) so that the Ministry can verify whether the requirements established by law have been met in order to be considered a duly authorized lactation room.
The Ministry of Labor and Social Welfare and the Ministry of Health will be in charge of carrying out permanent inspections in workplaces to ensure full compliance with the Law for the Promotion, Protection and Support of Breastfeeding; and the Head of the Nutrition Unit (MINSAL dependency) will be the competent authority for the application of the sanctions established in said law.
Considerations regarding sanctions for non-compliance:
In case of failure to comply in time with the implementation of the lactation room in the work establishment, employers will be exposed to receive an inspection by the MTPS and/or MINSAL, considering such omission as a very serious infraction, contemplated in Art. 41 literal a) which may be sanctioned with a fine of eleven ($4,015.00) to fifty ($18,250.00) monthly minimum wages of the commerce and services sector.
The employer, at the time of an inspection, may consider that it already has an “adequate” lactation room, but if this room does not comply with the guidelines established by the Ministry of Health, it will be considered as a very serious infraction, contemplated in Art. 41 paragraph b), which may be sanctioned with a fine of eleven ($4,015.00) to fifty ($18,250.00) monthly minimum wages of the commerce and services sector.
Fines will be determined based on the economic capacity of the offender. Additionally, it is important to mention that “very serious” infractions will be sanctioned with a fine of eleven to fifty minimum monthly salaries of the commerce and services sector and may result in the definitive closing of the establishment for not complying with the guidelines established by the Ministry of Health.
To avoid this situation, it is important that each employer is informed of the requirements established in such regulations, and additionally, by the Ministry of Health, supported by labor specialists who can support them with the implementation of the lactation room and compliance with the regulations in general.
Breaks for breastfeeding or expressing milk as an occupational benefit
Art. 36 of the Love Converted into Food Law establishes that once the maternity leave is over, upon returning to the workplace, for six months, the worker will have the right to a one-hour daily break in her working day in order to breastfeed her daughter or son, as well as to have the opportunity to collect the milk. It should be clarified that the six months of such breaks will be counted from the moment she returns to work, not to be confused with the maternity leave period.
The break may be divided into two breaks of thirty minutes each or even as many times as the worker has agreed with the employer. It is important to note that at no time may the work break used for breastfeeding or milk collection be replaced by the lunch break; they must definitely be different breaks.
These breaks will be counted as effective working time and will be paid as such.
Exceptional cases in the allowance for breastfeeding or expressing milk:
In case of failure to comply in time with the implementation of the lactation room in the work establishment, employers will be exposed to receive an inspection by the MTPS and/or MINSAL, considering such omission as a very serious infraction, contemplated in Art. 41 literal a) which may be sanctioned with a fine of eleven ($4,015.00) to fifty ($18,250.00) monthly minimum wages of the commerce and services sector.
The employer, at the time of an inspection, may consider that it already has an “adequate” breastfeeding room, but if this room does not comply with the guidelines established by the Ministry of Health, it will be considered as a “violation of the law”.
If the worker has a working day that exceeds eight hours, she will be entitled to a second break, i.e., an additional hour to breastfeed or collect milk, under the same conditions mentioned above.
In the event that the worker has completed the 6-month postpartum period and is still breastfeeding, she may use the lactation rooms to express and conserve milk for as long as her lactation lasts, being able to use the lactation room during her free time, rest periods or unpaid time.
Finally, we reiterate to all employers the importance of seeking the appropriate legal advice in order to fully comply with the Law Amor Convertido en Alimento para el Fomento, Protección y Apoyo a la Lactancia Materna, thus avoiding monetary penalties or even receiving an accessory fine such as the definitive closure of the establishment that fails to comply with the guidelines established by the Ministry of Health for the operation of the lactation rooms.
For more information, please contact the following e-mail: nlarios@consortiumlegal.com and crodriguez@consortiumlegal.com.