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The Reformed German Maternity Protection Act
The German Maternity Protection Act (Mutterschutzgesetz – MuSchG) in its original version entered into force in 1952 serves the purpose of protecting expectant and breastfeeding mothers. The Act aimed at improving the chances of women in the context of exercising professional activities, and to allow women even during pregnancy and breastfeeding periods to also engage in a wage-earning occupation without risking a detriment to their health. The Act further ensures a continued remuneration for work during pregnancy-related absence (downtime) and stipulates a statutory protection against dismissal for the entire pregnancy including a time period of four months after childbirth.
Moreover, a prohibition of employment for six weeks before scheduled delivery and for the first eight weeks after delivery was introduced; then the working time was limited to a maximum of 8.5 hours per day.
On 30th of March 2017, the German Bundestag (Federal Parliament) has adopted the law updating the previous Maternity Protection Act. The material changes of the reform as compared to the former Maternity Protection Act will be presented in the following article:
Scope of Application
In future, the MuSchG shall apply not only to female employees and women employed in work at home, but irrespective of the type of employment also to female pupils and students, female apprentices (including trainees), women employed in sheltered workshops, female humanitarian workers, female volunteers within the meaning of the German Federal Volunteer Service, deaconesses and women with a quasi-subordinate employment status. In addition, also third party managing directors of a GmbH (German limited liability company) fall within the scope of application. With regard to female civil servants and judges, specific provisions will be laid down in separate ordinances (having the force of law) issued at federal and state (German Länder) level.
Terms of Protection
The term of protection after birth now amounts to twelve instead of eight weeks, not only in case of premature or multiple birth but also if an invalidity of the child has been diagnosed within eight weeks after its birth. The aim is to take into account that such a birth is closely connected with particular strain.
Special Protection against Dismissal
A prohibition against dismissal will in future also apply to women who suffer a miscarriage after the twelfth week of pregnancy. The prohibition against dismissal ends four months after the miscarriage has occurred.
Night Work, Work on Sundays and Holidays
Pregnant and breastfeeding women may be employed until 10 p.m. but only if a medical clearance certificate has been presented in which the woman has given her express consent and the job does not consist of working alone. Working alone is defined as a situation in which the woman is employed at a workplace in the employer's local sphere of responsibility without any guarantee that she can leave or reach the workplace at any time.
The new regulations will come into force on the 1st of January 2018 and replace the original Maternity Protection Act. With the exception of the regulation concerning the particular protection in case of birth of a disabled child or a miscarriage which will come into force on the date of promulgation.
Implications for Employers
In future, the employer shall be obliged to notify the supervisory authority without undue delay when it has been informed by a woman of her status of pregnancy or breastfeeding, and if it is the employer's intention to employ a pregnant or breastfeeding woman.
There shall also be no more bans on employment against the will of the pregnant woman. The possibilities to work on Sundays and holidays shall also be extended if the affected woman wishes. The employer is obliged to use all available opportunities so that pregnant women can sustain their professional activities without any detriment to their health. The employer is required now to first redesign the workplace and the working conditions and, if necessary, to assign the affected woman to another more adequate position. A ban on employment shall only be permissible if, despite such measures being adopted, an unaccountable detriment to health cannot be excluded. Under certain conditions the ban on employment can be declared either by the employer or by way of a medical certificate.
In addition, pregnant and breastfeeding woman may now work until 10 p.m. An administrative permit procedure to be applied to employment between 8 p.m. and 10 p.m. shall, however, be implemented. During the assessment performed by the authority the employer should be able to continue to employ the woman. If the authority fails to render a decision within six weeks the application shall be considered to have been accepted.
The employer then may have to make an effort to find a replacement for a pregnant employee for a longer period. As female employees frequently take parental leave following the period of maternity protection and such time period requires a replacement anyhow, the effects will of course be kept within reasonable limits.
If you have any questions related to this topic, please feel free to contact
Nadine Kirchner (Lawyer).