?The company in Argentina where lawyer Alberto Gonzalez-Torres’ son-in-law works has had in-house day care for a long time, and Gonzalez-Torres’ grandchild now attends the onsite program. This scenario might soon become more common around the country, as a nearly 50-year-old regulation has been revisited and retooled to require businesses with more than 100 workers to provide day care services. However, the revamped decree has its challenges.
“Setting up new practices is difficult,” said Gonzalez-Torres, an attorney with Baker & McKenzie in Buenos Aires.
Old Obligation, New Decree
The obligation for some companies to provide care facilities for children—now interpreted as those ages 45 days to 4 years—was first set in 1975 in Argentina’s Labor Employment Law, but it was rarely regulated or enforced. However, in 2021, the country’s Supreme Court of Justice issued a ruling that compelled companies to comply.
“The Supreme Court of Justice ordered the executive power to regulate this obligation and to actually set up and define the terms under which the companies should provide day care services to the employees,” said Guillermo Matias Osorio, an attorney with Marval, O’Farrell & Mairal in Buenos Aires.
Osorio’s colleague Paola Forchiassin, also an attorney, added, “What the decree states today is that the obligation is mandatory for those establishments or the premises, where there are 100 persons or more working, and the decree is quite broad about this because it does not refer only to the employees of the owner of the premises, but to any person working there.
“In principle, the aim of the decree is that the employer has these facilities in the workplace. But it authorizes, for example, to subcontract, to outsource this service. And it also provides the possibility of paying a nonremunerative compensation to the employees as a reimbursement of expenses of those care tasks,” Forchiassin explained. “According to the decree, this possibility would apply for the employees that are under a CBA, a collective bargaining agreement, if the union and the chambers of employers agreed in that sense, and also for teleworkers.”
It is unclear, however, if reimbursement of child care expenses can be done if it is not negotiated with a CBA.
However, companies are still choosing reimbursement as the preferred option, since setting up an onsite day care can be more complicated than simply reimbursing employees.
Benefits for Both Employers and Employees
Choosing reimbursement isn’t only beneficial for employers, who wouldn’t need to set up an onsite day care facility, but it can be preferred by employees as well.
“Probably most people would rather choose the day care service they want to use, and it’s probably more useful to have a day care service right next to home, rather than having the day care service at the workplace or near the workplace, as the decree says, because that implies transporting the child every day,” Osorio said.
Although an employee could theoretically bring litigation to force a company to provide onsite day care, initial feedback has shown that reimbursement is popular all around.
“I’ve seen happy faces from employees because this is something that was on the table, it was an obligation provided from decades ago, and nothing was happening, they were already paying for the day care service,” Osorio said. “At least now they’re getting a reimbursement for a relevant amount.”
The decree will likely continue to be clarified as it goes into practice. “Law is a living thing, and it evolves,” Gonzales-Torres said. “I believe that the decree was necessary, [though it] was drafted on very broad and general terms. We have the decree, and it will most definitely evolve.”
Katie Nadworny is a freelance writer in Istanbul.
