Implications of Law 2306 of 2023 and the employment legal provisions for breastfeeding employees
On July 31 of 2023 the Congress issued the Law 2306 of 2023 which main goal is to promote the protection of maternity and primary childhood.
Even though this Law includes provisions related to incentive to create breastfeeding areas on public spaces and the mother´s rights to breastfeed in public without any restriction, this analysis is mainly focused on clarifying the obligations that employers must consider in regards to employees who are breastfeeding.
Hence, article 6 of Law 2306 of 2023 included important changes in regards to the breastfeeding resting period stated on article 238 of Colombian Labour Statute, considering that it established that in addition to the 2 periods of 30 minutes of resting time that the employees who are breastfeeding are entitled to on the first 6 months of their baby, employes must grant one (1) resting time period of 30 minutes per day, during the time the employee`s child is between 6 months and 2 years old, as long as the continued breastfeeding is still maintained.
In relation to the practical appliance of this obligation, one of the main questions that arises is how employers could verify that indeed there is a continuity on the breastfeeding after the baby has turned 6 months old. On this regard, it is important to keep in mind that Law 2306 of 2023 does not establish any specific requirement to prove this continuity, being advisable that while specific regulations are issued, employers internally review if they have employees who have children between 6 months and 2 years old in order to define and establish efficient mechanisms to verify the compliance of this obligation and to gran the 30 minutes of mandatory resting time for breastfeeding purposes.
On the other hand, one of the main questions that have arisen are related to the fact if this increase on the time in which the breastfeeding resting time is granted, affects the special job stability due to maternity stated on article 239 of Colombian Labour Statute which forbids the dismissal of employees because of “pregnancy or breastfeeding”.
In order to provide an answer to this query, it is important to clarify that even though article 239 expressly mentions dismissals based on pregnancy or breastfeeding, it expressly limits this protection on numeral 2 which expressly indicates the following: “It is presumed that a dismissal was based on the pregnancy or breastfeeding, when it has taken place during the pregnancy or on the following eighteen (18) weeks after the birth”
Based on the above, it is understood that considering the fact that Law 2306 of 2023 did not change article 239, which expressly defines that the maternity special job stability only applies during the pregnancy and on the following 18 weeks after the birth (which is the time of the maternity leave) the extension on the breastfeeding time, does not generate an extension on the time of maternity job stability, which is in accordance with the views of the Supreme Courts which have established that after the termination of the maternity leave, the prohibition to dismiss stated on the aforementioned article does not apply and therefore that employee that was dismissed once the following 18 weeks after childbirth have passed, will have the burden of proof to demonstrate that the termination was because of her condition as breastfeeding mother.
Therefore, employers must verify their internal population of breastfeeding mothers who have children under 2 years old, in order to make the corresponding adjustments on the schedules in the cases that is necessary, in order to comply with the aforementioned dispositions.
