What to expect, when you’re expecting – Major changes and open questions with re-spect to the German Maternity Protection Act

Since 1 January 2018, the new German Maternity Protection Act (Mutterschutzgesetz, MuSchG) has been in place. In accordance with the Act, several provisions have changed. One of the most relevant changes for employers is that it is now a statutory requirement to carry out specific risk management for all work conducted within the company. Further changes concern the scope, as well as changes to the protection periods. Also, some regulations for ensuring more flexible work during pregnancy were included.

Broadening the scope

The Act itself introduced some further changes already in 2018. The Act now not only covers employees, but also apprentices, interns and students, as well as dependent freelancers, etc. Therefore they are protected against dismissal and also covered under any employment ban. The Act still does not explicitly mention (female) Managing Directors. While § 1 (1) of the Maternity Protection Act refers to § 7 (1) of the Social Code IV, it could be argued that managing directors are covered, due to the fact that § 7 states that all persons are considered to be employees if they are performing an activity in accordance with instructions made and are integrated into the work organisation of the company. This could generally be affirmed for most managing directors. However, the Parliament has declared that managing directors are not protected under the Act since they cannot be considered as employed. A comparison is made to housewives, who are also not considered to be employed. Whether that is a good comparison is moot. The question will finally be answered by the courts. Currently, arguments for both views can be found.

Changes were also made with respect to working time. To ensure further flexibility, female employees can work at night, if they declare their willingness to do so and the public authority approves. This also applies for work performed on Sundays or public holidays (where no approval of the authorities is necessary). Such changes can be considered employer-friendly as well as giving potential mothers back some self-determination, as each expecting employee can chose whether they would want to work at night, or on Sundays or public holidays.

Previous regulation with respect to risk assessment

According to the prior statutory regulation, it was sufficient for employers to start with a maternity-specific risk assessment, once the employee had told him that she was expecting and so-called event-dependent risk management had to be conducted. Accordingly, there were no specific requirements to be observed by the employer regarding the Maternity Protection Act prior to a pregnancy. Since the Occupational Safety Act is already applicable, there was no need for further scrutiny of any position.

Changes made by the legislation

However, this changed with the specific risk assessment for the protection of pregnant or nursing women (not specific to an individual) (§ 10 (1) first sentence, No. 1 MuSchG), which applies to existing positions as well as in respect to new ones. Moreover, all positions within the company are concerned, not only those occupied by a pregnant employee. Each employer is compelled to comply with this requirement, even those who do not even employ women. Since 1 January 2019, non-implementation can be penalised with fines of up to EUR 5,000. In 2018, employers had the chance to get used to these new circumstances. Now non-compliance can be fined.

Each position needs to be analysed for potential hazards for pregnant (or nursing) employees. As a matter of fact, this applies even if no woman will ever perform such duties. If potential hazards for pregnant (or nursing) women are found, the employer must continue to determine whether protective measures or the reorganisation of working conditions are required. The Act itself is silent on how exactly employers are supposed to comply with such requirements. The analysis should be conducted as follows:

• Verify all the different duties carried out within the company. It is sufficient to examine one position, if several employees are carrying out the same work. It is essential that any work performed within the company is recognised.
• Scrutinise, which risks are resulting with respect to pregnancy from the performance of the work. Such a risk is given, if a pregnant (or nursing) woman could only carry out her work while endangering the health of her unborn child (or the woman when nursing child) at the same time.
• If hazardous conditions for pregnant (or nursing) women are found, the employer must come up with protection measures to either fully avoid or at least prevent any danger.
• Lastly, the employer must document the results of the risk assessment and inform all potential employees. This includes not just pregnant (or nursing) women, but also all male employees, since any protection measures must be communicated to them as well.

The underlying idea is that employers should to be prepared for employees to become pregnant and therefore be ready to take any necessary further steps, which will already be outlined. Any company employment ban is supposed to be prevented by such prior risk assessment specific to the protection of pregnant women. However, employers have to obey the stricter documentation requirements, since fines are applicable now. If you are yet to take any measures in this regard, you should address this issue immediately.

If you have any questions related to this topic, please feel free to contact Dr Kathrin Bürger (Lawyer, Licensed Specialist for Labour Law, LL.M.).

Editor's note: A similar version of this article appeared in Labour Law Magazine, Issue 1/2019 on page 19.