GENERALITIES
Law 2306 of July 31, 2023 recognizes the right to respect breastfeeding of persons in the lactation period, to do so in public spaces, without generating restrictions or discrimination of any kind.
Likewise, it creates breastfeeding spaces in public and private places with high foot traffic. These lactation rooms must have health guarantees for free use by persons in the lactation stage, without the existence and/or adaptation of these spaces being mandatory.
The adaptation and construction of lactation rooms is being undertaken by public entities, municipalities, mayors' offices, and districts. Companies dedicated to the commercialization of breast milk substitutes and other products within the scope of the International Code of Marketing of Breast-milk Substitutes may not participate in or finance lactation rooms. This implementation must be accompanied by campaigns promoting proper breastfeeding, technique, and nutritional topics for lactating persons. It must also include pedagogical and informational strategies that allow citizen transformation regarding breastfeeding.
The health secretariats or institutional health and welfare institutes will be the entities responsible for exercising surveillance and control over lactation rooms. In turn, the ICBF will be responsible for issuing technical guidelines for these spaces.
It is noteworthy that, although the norm contemplates the possibility of granting benefits, incentives, and tax relief in accordance with its clauses, it is subject to fiscal or tax reforms, so such benefits are not applicable to date.
How does it affect the employer?
Law 2306 of 2023, within its provisions, contemplates the modification of Article 238 of the Substantive Labor Code. Recall that in its initial text, it provides for two (02) paid rest periods, each of twenty (20) minutes, during the first six (06) months of the child's age, later extended to thirty (30) minutes.
With this modification, we find three types of paid rest periods for the person in the lactation period: (i) a first moment, occurring during the first six months of the child's age, with two periods of thirty (30) minutes each for breastfeeding; (ii) a second moment, occurring from the child reaching six months and one day of age until two years, in which case a single rest period of thirty (30) minutes is recognized within the workday, provided that "adequate continuous breastfeeding is maintained and manifested"; and (iii) a third moment, occurring during the lactation period, regardless of the child's age, which extends the paid rest periods only if a medical certificate indicates the need for additional time for the child to breastfeed under proper conditions.
It is in the second and third moments where the greatest difference in the application of the lactation period is found, since the lactating person's manifestation alone would suffice to notify the employer.
It should be noted that this extension of the rest period for lactation does not represent an extension of the reinforced employment stability of the mother or father, if extended, since, according to Article 239 of the Substantive Labor Code, numerals 1 and 2, maternity protection extends only until the completion of the maternity leave weeks, that is, the (18) weeks or extensions in case of multiple or premature births, thus dismissals occurring after these weeks are not initially considered discriminatory.
What about lactation rooms?
On the other hand, two new obligations arise: (i) the first, the creation or adaptation of spaces adjacent to the workplace of the lactating person for proper breastfeeding, or (ii) to keep the child.
Although the obligation of lactation rooms exists under Law 1823 of 2017, called "friend rooms of the lactating family," they become mandatory when the company has capital equal to or greater than 1,500 SMLMV or, being below 1,500 SMLMV, has 50 female workers.
With the new provisions, an ambiguity is evident, since it indicates their implementation regardless of capital or workers. Likewise, it indicates that these spaces must be appropriate not only for the extraction of breast milk or breastfeeding the child, but also for keeping the child within that location, and if the optimal conditions for keeping the child are not available, the employer must contract child protection institutions.