Last April 18th, the Legislative Assembly approved in second debate Bill 21.1149, which seeks to combat labor discrimination against pregnant women, through the reform of articles 94, 94 bis, 95, 96, 97, 100 and the addition of paragraph K to article 70 of the Labor Code.

In this way, this project provides a series of changes that seek to guarantee and improve the rights of male and female workers, especially those of pregnant women, who are highly vulnerable to suffer labor discrimination.

Among the main changes to be implemented with these reforms we can list the following:

Expansion of the Scope to Apply the Special Protection Regime and Special Leave of Absence.

The modification to the Labor Code includes within the Special Protection Regime, the prohibition of dismissal except for just cause, not only to workers who are pregnant or breastfeeding, but also to those who are on special leaves of absence.

Likewise, it is now also included the obligation of the employer that once the leave of absence period has elapsed, the employer must provide paid leave of absence to attend medical services for the child, as well as for the mother or the person in charge of the child.

Within the special leaves of absence, this are the new ones now included:

• Individual Adoption: 3 months paid leave of absence will be granted to the adopter.
• Joint Adoption: A 3-month paid leave of absence will be granted, which will be divided between the adopters by mutual agreement.
• Biological Father: Paternity leave of absence is created, which consists of two days per week during the first four weeks after the birth of the son or daughter. This must be guaranteed and complied with by the employers, under penalty of incurring in a serious offense and being sanctioned with an indemnity in the amount of six salaries in favor of the father.
• Special Leave of Absence in Case of Maternal Death: In these cases the biological father will be entitled to a special postpartum leave equal to that which would have been granted to the deceased mother. Such leave may be transferred to another person which demonstrates that he or she will take care of the newborn in case the father is absent or does not commit himself to take care of the newborn.

In the same sense, the possibility is now granted to the worker who is dismissed breaching the prohibitions and special leaves of absence previously indicated, to terminate their employment contract with employer’s liability. This is in addition to the possibility to opt for reinstatement, which is maintained from the previous version of the Labor Code.

On the other hand, another of the changes included in the reform is that now it is stipulated that once the leave of absence, medical leave or vacation time has passed, the worker will return to his/her position and only in exceptional cases, duly justified, may they be placed in another position equivalent in remuneration, and which is related to his/her aptitudes, capacity and competence.

Variations in Rights and Obligations During the Breastfeeding Period

In addition to the already established intervals for breastfeeding (15 minutes every 3 hours or 30 minutes twice a day), now the worker in breastfeeding period will be entitled to 1 hour at the beginning of their shift and 1 hour before the end of the shift for this same purpose.

In this sense, for the application of these new breastfeeding periods, the possibility was provided for the worker to choose to enter one hour later or leave one hour earlier from her work place, time which must be paid in any of these options.

For the application of these new breastfeeding periods, it has been established that the worker may choose to start their shift one hour later or leave one hour earlier from her workplace, time which must be paid in any of these options.

In accordance with these provisions, it was established the obligation of the employer who employs breastfeeding women to provide a space within its facilities, which must guarantee privacy and hygiene for mothers to breastfeed their children, and to store it. This was previously only required for employers employing at least 30 women.

Protection against discrimination for pregnant workers

Finally, to fight against discrimination against pregnant workers, a new prohibition was included for employers to require a medical pregnancy test to start or remain at a job.

Currently, for these amendments to become effective, the President must sign the corresponding legislative decree and then wait for it to be published in the Official Newspaper La Gaceta, at which time it will become effective.

At ERP Lawyers & Associates we take with great enthusiasm the approval of this bill, as it will undoubtedly put our country at the forefront in the fight against labor discrimination against women, seeking to ensure a fairer and safer work environment.

If you have any doubts regarding the application of these new reforms or how to implement them in your company, we invite you to contact us at info@erplawyers.com where our team of experts will gladly provide you with the necessary legal advice.