The Constitutional Chamber of the Supreme Court of Justice ruled in favor of the remedies of appeal on grounds of unconstitutionality by omission ﬁled in 2015 and 2016, based on the lack of regulation of the employers' obligation set forth in Article 42(2) of the National Constitution, which establishes that "Laws shall regulate employers' obligation to install and maintain nurseries and childcare facilities for employee's children", a beneﬁt that to this date employees had not been given the chance to enjoy.
Thus, the Court has ordered the Legislative Assembly to issue a secondary law to set any aspects concerning the beneﬁt of childcare facilities for employees' children, that is, employers will now be subject to a new obligation to provide their employees with this beneﬁt; for these purposes, the Legislative Assembly must comply with the Court's order no later than May 31, 2018.
The aforementioned authority set parameters to enforce this constitutional requirement, also noting that employees' children should be under the supervision of suitable and qualiﬁed professionals responsible for providing any care as required by these children during the entire workshift of their fathers or mothers, as the case may be, in order to ensure an appropriate environment that fosters comprehensive development.
It must be noted that the parent's gender has no impact whatsoever on the possibility that the child enjoys the childcare beneﬁt at speciﬁc facilities, such as nurseries. The key issue here will be that the beneﬁtted person must work for the employer, who must bear any expenses incurred for the operation of these nurseries and childcare facilities.
Most employees in El Salvador do not enjoy the beneﬁt – which was optional until now – of having their children taken care of at a childcare facility during their work shifts; however, this will change in the near future as this would turn into a legal obligation for all employers.
Several studies conducted abroad (Bright Horizons Family Solutions Organization) have determined that having a childcare facility available for employees at their workplace results in beneﬁts for parents working at companies, and even improves their performance, which is why we expect that the consequences arising from this new legal obligation would be positive for employers and employees alike.
This is a major challenge for lawmakers, as they should regulate a number of circumstances, including:
- Accidents that may occur at childcare facilities,
- What would happen with employee's children with any kind of disabilities?
- What is the minor's age limit to enjoy this beneﬁt?
- Harmonize the ﬁnancial burden borne by all employers in order to comply with this beneﬁt for all employees, and
- Speciﬁc causes that would lead employees to lose this beneﬁt.
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