On April 2, 2014, the Federal Official Gazette published the Decree amending and adding to various provisions of the Social Security Law and the General Law on Women's Access to a Life Free of Violence.
Said reforms refer to employers' obligation to provide working mothers in their nursing period with extra breaks plus an adequate, hygienic place to breastfeed their children.
It is important to remember, in the first place, that article 170(IV) of the Federal Labor Law (the "FLL") establishes that working mothers will be entitled to:
- A nursing period of six months, at most.
- Two extra breaks of one half-hour each per day to feed their children, over a 6-month period.
- Have, at the workplace, such adequate, hygienic space to feed their children as the company may designate, or, if this is not possible, then, with prior agreement with the employer, reduce the workday in one hour during such 6-month period.
For this reason, as it is permitted by the FLL itself, some companies that, due to their operations, do not have an adequate, hygienic nursing space, have agreed with their female employees to reduce their workday in one hour.
However, according to the amendment to article 94 of the Social Security Law, it is established that the Mexican Social Security Institute (the "IMSS") will grant working mothers the following benefits, among others, during the pregnancy, childbirth, and puerperium periods:
- Aid in kind during 6 months for nursing, training, and encouraging breastfeeding, to promote it as the only way to feed the child during six months and as a supplementary way until the child is two years old;
- During the (6-month) nursing period, working mothers will be entitled to decide between getting two extra breaks per day --one half-hour long each-- or one single one-hour extra break per day to breastfeed their children or for manual pumping of breast milk in an adequate, hygienic space designated by the institution or agency.
According to the foregoing, the IMSS will provide, in addition to the aid in kind for six months for nursing, training, and encouraging breastfeeding to promote it as the only way to feed the child during six months and as a supplementary way until the child is two years old (parece incompleta la idea en el original).
Moreover, a working mother may choose between taking two extra breaks per day --one half-hour long each-- or one single one-hour extra break per day to breastfeed her children or for the manual pumping of breast milk, but always in an adequate, hygienic place designated by the corresponding institution or agency inside the workplace.
We consider that the new provisions of the LSS will cause legal uncertainty to employers, since they contravene the provisions of the FLL currently in force. That is because the FLL contemplates that employers may agree with a working mother for the reduction of her workday in one hour when the former are not able to provide an adequate, hygienic nursing space at the workplace. On the other hand, under the reform, the LSS establishes that a working mother may have the option to take two one-half-hour breaks a day or to take a one-hour break a day to feed her child or for the manual pumping of breast milk, but always at the workplace.
In addition to the foregoing, the reform to the LSS establishes that the adequate, hygienic nursing space should be designated by the institution or agency, without defining what institution or agency it refers to, thus contravening the provisions of the FLL, since the latter determines that the nursing space will be designated by the company.
Furthermore, an amendment to article 11 of the General Law on Women's Access to a Life Free of Violence establishes that violence at the workplace is, among other things, preventing women from taking the nursing period contemplated in the law and, pursuant to provisional article Two of the same Law, a term of 365 calendar days following the effective date of the reform is granted to companies, institutions, and agencies for them to make the accommodations needed to comply with the provisions of the corresponding law. That is, in the case in question, setting up an adequate, hygienic nursing space.
As can be seen, the amendments to the above-mentioned laws will make it difficult for employers to agree with their female employees in the nursing period on the reduction of their workday in an hour, as employers will be obligated to provide an adequate, hygienic nursing space.
It is important to point out that we have knowledge that, under the inspections being conducted by the Ministry of Labor and Social Welfare, even though under the FLL currently in force an employer may not have a nursing space, the inspectors are demanding that such space be available. Otherwise, they are imposing fines for such failure, for which reason the coming into force of such reforms will increase the number of fines for such item.
In our opinion, there are serious defense elements against such acts. Therefore, at Baker & McKenzie we are at your disposal to give any support you may need during the inspections you may undergo and, as applicable, to challenge any fines determined in case you do not have an adequate, hygienic nursing space available at the workplace.