El Salvador | Legislative Amendments in Relation to Early Childhood Care Centers

Alicia Henríquez, Associate at ARIAS El Salvador and member of the Dispute Resolution and Labor Law Department, shares with us this article on the reforms made to the operation of Early Childhood Care Centers, with the aim of strengthening the rights of early childhood.  

On March 1, the obligation for municipalities and private sector employers to provide their employees' children with access to an Early Childhood Care Center (CAPI) came into force. 

Recall that, in the year 2023, the "Growing Together Law for the Integral Protection of Early Childhood, Children and Adolescents” came into force, a legal body whose purpose is to strengthen and ensure the comprehensive protection of the rights of children and adolescents and which established the obligation and responsibility of employers with one hundred or more employees in the private sector, public sector and autonomous institutions to guarantee the children of their employees, access to an establishment for the early and timely stimulation and education of children, with the purpose of favoring their physical, cognitive and affective development 

From the beginning, it was regulated that compliance with this obligation would be carried out in a "staggered” way, establishing a maximum term for the obligated subjects and entities to provide early childhood with integral care through access to a CAPI. 

Initially, article 300 of the Growing Together Law for the Integral Protection of Early Childhood, Children and Adolescents  already regulated the maximum terms foreseen for public sector institutions, autonomous official institutions and private sector employers to comply with the employer's obligation; however, through the Decree No. 927, published in the Official Gazette No. 5, volume 442, on January 9th, 2024; those deadlines were extended following the amendments made by the Legislative Assembly to the Growing Together Law for the Integral Protection of Early Childhood, Children and Adolescents , granting eighteen months for public sector institutions and autonomous official institutions (including Salvadoran Social Security Institute and Hydroelectric Executive Commission of the Lempa River), and twenty-four months, i.e., two years for municipalities and private sector employers, both counted as of the entry into force of the Regulations and Technical Standard for the Installation and Operation of Early Childhood Care Centers. 

However, until March of this year, compliance with this obligation became enforceable for private sector employers and municipalities, so it is important to inform about the reforms that have been made in this area. 

Since 2024, amendments have been made to the regulation and the technical standards, the first reforms were made to both regulations by means of institutional agreement No. 1, dated April 11th, 2024, published in the Official Gazette No. 95, volume 443, dated May 22nd, 2024, issued by the National Council for Early Childhood, Children and Adolescents (CONAPINA); and even on February 3rd, the latest amendments to the CAPIS were published in the Official Gazette, but on this occasion, only to the regulations in question. 

Based on Decree No. 927, the Legislative Assembly decided to implement a new modality of access to the Early Childhood Care Centers, reforming article 137, which refers to the forms of compliance with the employer's obligation. 

The above, given that the modalities established in the Growing Together Law for the Integral Protection of Early Childhood, Children and Adolescents to comply with the employer's obligation did not contemplate the possibility for parents to choose a center according to their educational preferences and values; therefore, the possibility was incorporatedfor employers to opt for an alternative modality to those already included in the regulation, in which each worker is paid the average cost of the services of a CAPI when the parent chooses the center to be attended by their child, according to the educational preferences and values of the family. 

This is based on the preferential constitutional right of fathers, mothers, representatives or guardians of children and adolescents to choose their education (article 55 of the Constitution of the Republic and developed in article 47 of the Growing Together Law for the Integral Protection of Early Childhood, Children and Adolescents). 

Therefore, the employer has the possibility of fulfilling its obligation by paying the worker the average cost of a CAPI duly authorized and selected by the worker according to his or her preferred values and education. 

In a similar sense, article 9 of the Regulations was amended, reiterating that, in order to comply with the employer's obligation, employers must opt for one or more of the modalities regulated in the Growing Together Law for the Integral Protection of Early Childhood, Children and Adolescent, considering the right of parents to choose the education of their children. 

Consequently, employers must establish in their internal regulations the conditions for this benefit and may not establish distinctions based on the salary or position held by the workers. 

Now then, what is the average cost of a CAPI? The reform under consideration provides an answer to this question by establishing that the parameters for determining this cost will be established by the Regulations for the Installation, Operation and Supervision of Early Childhood Care Centers. 

Thus, article 9-A was incorporated into the Regulations, which provides that the parameters to be taken into consideration in defining the average cost of CAPI services are the following: 

In addition, it establishes that CONAPINA will be in charge of coordinating a technical committee made up of the institutions it considers relevant, with the purpose of defining the average cost of CAPI services, which must be reviewed and updated annually. Furthermore, once the average cost has been authorized by CONAPINA, it will be published on its website. 

Currently, the average cost of a CAPI as determined by CONAPINA is seventy-two dollars and seventy cents (US$ 72.70) for the registration fee and one hundred and fifty-one dollars and forty cents (US$ 151.40) for the monthly fee. 

This allows employers to have more flexibility in selecting any of the modalities provided in the special legislation to effectively comply with the obligation to guarantee an integral early childhood care model for the children of their workers, guaranteeing the right in question jointly as a responsibility not only of the State, but also of the family and society. 

Another of the incorporated reforms is related to the procedure for authorizing a CAPI. Previously, only definitive authorizations for the centers were mentioned, however, it is now also possible to obtain provisional authorizations for Early Childhood Centers. 

As it was already regulated, when a CAPI complies with all the requirements established in the Technical Standard for the Installation and Operation of Early Childhood Care Centers, it is granted a definitive authorization with a three-year term; however, the amendment made to the fourth paragraph of article 147 of the Growing Together Law for the Integral Protection of Early Childhood, Children and Adolescent, incorporates the possibility of revoking that definitive authorization in the event of non-compliance with the provisions contained in the aforementioned law.