Could the New Obligation of Having Nurseries at the Workplace Be Replaced by Reimbursing the Expenses?

The obligation to provide nurseries and day care centers for employees' children between 45 days and 3 years of age, established by Decree No. 144/2022, will become enforceable as of March 2023. This obligation applies to establishments where 100 persons or more work.

 

Employers may outsource the day care centers or implement them together with other employers. However, most companies opt to reimburse their personnel for the expenses incurred for the care of their children.

 

On the one hand, the possible liability of employers who set up a nursery or outsource the service to a third party discourages companies from choosing these alternatives.

 

On the other hand, the freedom to choose the place of care is a benefit for parents, and this makes reimbursing expenses more attractive to them. This alternative not only allows employees to choose the care service by its reputation but also by its location, in a context where remote work is increasingly widespread and in which both parents tend to be equally involved in care tasks.

 

What does Decree No. 144/2022 provide for about the possibility of reimbursing expenses?

 

The decree allows replacing the obligation to provide nurseries by paying a non-remunerative sum as reimbursement for expenses, if this is agreed upon in collective bargaining agreements or in cases of teleworking.

 

The expenses must be duly documented. This means that the company must request the relevant receipt, which must be issued by an institution authorized by national or local authorities (accordingly), or the pay slip of the person in charge of the care, which must show to be registered under the category "Assistance and Care of Persons", pursuant to the special employment contract regime in Law No. 26844.

 

The amount to be reimbursed may not be less than 40% of the monthly salary corresponding to the person registered under the category "Assistance and Care of Persons" leaving the work place every day (“con retiro”), under the regime provided for in Law No. 26844, or the amount actually spent, should it be less than that.

 

In the case of part-time employment contracts, the amount to be reimbursed must be proportional to that of a full-time worker.

 

Regarding the possibility of agreeing in collective bargaining agreements to reimburse expenses, in January of 2023, the Argentine Federation of Employees of Commerce and Services (FAECyS) and the Argentine Chamber of Commerce and Services agreed that commerce employers can choose to pay their personnel a non-remunerative amount as reimbursement of expenses, provided that they exercise this faculty reasonably.

 

As for the persons hired under the teleworking modality provided for in article 102 bis of the Labor Contract Law No. 20744, compliance with the childcare requirement will be according to the conditions established by the Teleworking Law No. 27555.

 

There are some concerns about different practical aspects regarding the companies’ reimbursement of expenses which Decree 144/2022 does not explicitly solve and which, for now, have not been resolved through a complementary regulation. Requiring specific information from the involved personnel could be a good idea to try to mitigate potential challenges.