Broader maternity protection

The situation in Germany and its current reform

By Axel Braun

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For almost 65 years, the Maternity Protection Act has remained unchanged as the main law for maternity protection in Germany, providing bans on employment and protection against termination of employment for pregnant women and such rights after giving birth. Since employment has changed greatly over the past couple of decades, it was time to adjust the Act to take account of modern work environments, health perceptions and employment law developments. This was one of the final actions carried out in the legislative period tht has just come to an end. This article gives an overview of the main provisions of the Maternity Protection Act, including the most important changes which will take effect from the beginning of 2018.

Basics: The Maternity Protection Act

Maternity protection in Germany provides female employees with comprehensive protection during their pregnancy and for a certain period of time after they have given birth, against any disadvantages arising in connection with the birth of their child with regard to their health and preserving their jobs and salaries.

The special status of pregnant women and mothers is already constitutionally protected by article 6 (4) German Basic Law (Grundgesetz, GG), which states that each mother is entitled to be protected and cared for by the community. Under employment law, the Maternity Protection Act (Mutterschutzgesetz, MuSchG) ensures that during pregnancy and for some time afterwards, extensive protection is given to (expectant) mothers. This applies to all women who are in employment, irrespective of whether the employment is permanent, temporary, probationary, principal or secondary, as per section 1 (2) sentence 1 Maternity Protection Act in conjunction with section 7 (1) German Social Code IV (Sozialgesetzbuch IV, SGB IV) and section 1 (2) sentence 2 Maternity Protection Act. It also applies to employees who work from home (section 1 [2] sentence 2 No. 6 Maternity Protection Act) and women who are in an apprenticeship (originally and currently still provided by section 10 [2] German Vocational Training Act [Berufsbildungsgesetz, BBiG]).

The Act does not apply to women who are self-employed. In its original version, it did not apply either to women who hold a position in an executive body of a legal entity. However, its applicability to the latter was in dispute for years due to EU Directive 2010/41/EU on the Application of the Principle of Equal Treatment and the case law of the European Court of Justice – at least with regard to the support that should be provided to pregnant self-employed women by the state, and the termination and revocation possibilities regarding (external) female directors who are bound by instructions and whose employment up until most recently could also be terminated during a pregnancy. With the reform of the Act, it now explicitly applies to all pregnant women who are not self-employed but have a dependent work relationship pursuant to the new section 1 (2) sentence 1 Maternity Protection Act in conjunction with section 7 (1) German Social Code IV. Thus, it now also includes managing directors as well as interns, pupils and students.

Scope of protection

One of the main areas covered by the statutory maternity protection provisions is health protection, which aims to ward off any risks to the life and health of the mother and child that may arise in the workplace. Pursuant to section 9 (2) and (3) Maternity Protection Act, the employer must ensure that the workplace of a pregnant employee corresponds to her requirements, i.e., the activities need to be adjusted in terms of type, place, pace and length and must be as ergonomic and emission-free as possible. This also includes granting breaks or providing the opportunity to sit or lie down during working hours. Even if the employment contract does not contain any provisions regarding being transferred to protect her health, a pregnant employee may be given other tasks to perform if it is deemed unreasonable for her to continue to carry out her current duties (Section 13 [1] No. 2 Maternity Protection Act). Pursuant to section 7 (2) Maternity Protection Act, if requested, the employee must be granted the necessary time off to breastfeed. With the reform of the Maternity Protection Act, an em-ployer is now also obliged to run a conceptual risk assessment on every actual or possible danger to pregnant employees (Section 10 Maternity Protection Act); protective action can also include workplace reorganization. The European Court of Justice recently decided that the employee bears the burden of proof at first when appealing the content of the conceptual risk assessment (decision from October 19, 2017, ref. no. C-531/15 – Otero Ramos).

In the order of precedence of protective measures, bans on employment can be applied depending on the condition of the individual employee’s health. If medically certified, a ban on employment for health reasons is possible at any point during the pregnancy (section 16 [1] Maternity Protection Act). Other bans on employment apply irrespective of the particular circumstances, above all if the employee’s tasks involve manual labor or the employee is exposed to harmful environmental conditions (section 11 [1] and [5] and section 12 Maternity Protection Act). These bans on employment concern expectant women as well as breastfeeding women. In addition, pursuant to section 11 (6) Maternity Protection Act, piece work or assembly line work, meaning systems that are dependent on the speed of work or quantity produced, is forbidden. Expectant mothers and those who are breastfeeding are also not allowed to do overtime or night work. As a rule, the maximum working time is 8 hours a day (section 4 [1] sentence 1 Maternity Protection Act). Six weeks before the birth, the employee may not work at all, section 3 (1) Maternity Protection Act, and eight weeks after the birth (in the event of multiple births, twelve weeks, Section 3 [2] sentence 2 Maternity Protection Act, or even longer in cases of miscarriage). According to sections 4 (1), 5 (1) and (2), 6 (1) and 12 Maternity Protection Act, the same bans on employment apply to women who are breastfeeding as to those who are expecting.

The new Maternity Protection Act leaves pregnant employees a further choice within the ban period before giving birth. Provided the employee expressly agrees and a medical certificate confirms her ability to do so, she may continue to work during this period (section 3 [1] Maternity Protection Act). However, there is an absolute ban on employment within the protective period after the birth, which cannot be repealed even if requested by the mother (section 3 [2] Maternity Protection Act). Before giving birth, employers are also obliged to avoid irresponsible risks for the employee or her child by letting her work alone. Overtime and night work is now possible, but only in exceptional circumstances and with an acceptance declaration from the regulatory authorities responsible for safety at work  (normally the supervisory office or the industrial safety agency).

Although the employer can only take maternity protection measures after having been informed about a pregnancy, the employee is not generally obliged to inform the employer about her pregnancy (section 15 [1] Maternity Protection Act). However, an obligation may exist as an ancillary obligation under the employment contract (section 241 German Civil Code [Bürgerliches Gesetzbuch, BGB]) if substantial legitimate interests of the employer would be affected by the pregnancy, for instance if the employee holds a key position which would require a long period of training for anyone covering the position during maternity leave. On the other hand, an employer is also not allowed to ask an applicant in an interview if she is pregnant, which is why a pregnant applicant has a “right to lie” without any legal consequences if confronted with this type of question. However, this does not apply if, due to the pregnancy, she could not carry out the intended work or if a ban on employment were to apply to the applicant.

Protection of remuneration

In order to discourage the employee from performing work that could damage her health, the Maternity Protection Act also stipulates that remuneration is to be protected. This means that the employee will receive maternity protection pay from her employer, which guarantees that she will receive the average remuneration earned over the last 13 weeks or 3 months before she became pregnant if she has been transferred on the basis of a ban on employment or can-not work either in whole or in part (section 18 Maternity Protection Act). During the protective period before and after the birth, the employee’s obligation to work is suspended, which is why she is not entitled to any remuneration. To ensure financial security during these periods, however, the employees receive monies from their social security provider or the state (maternity pay) and a subsidy from their employers (section 19 Maternity Protection Act). For the latter, and also for any monies that may be paid during the ban, according to section 11 Maternity Protection Act, the employer is entitled to be reimbursed for the statutory medical insurance contributions (section 1 [2] No. 1 and 2 German Expenditure Compensation Act [Aufwandsausgleichsgesetz, AAG]).

Workplace protection

According to section 17 (1) Maternity Protection Act, the employment contract of an affected employee cannot be terminated during the pregnancy and also for a period of four months after the birth (workplace protection). Pursuant to section 134 German Civil Code, any terminations made to the contrary are invalid; moreover, any breaches made by the employer of the statutory provisions of the Maternity Protection Act may constitute an administrative or even a criminal offense (sections 32 and 33 Maternity Protection Act in conjunction with section 9 [2] German Administrative Offenses Act [Ordnungs­widrigkeitengesetz, OWiG]) from 2019, also for violations within the conceptual risk assessment. This prohibition includes terminations of any kind and, therefore, alongside routine termination and dismissal with the option of altered working conditions, also extraordinary termination and termination during insolvency proceedings. Newly introduced is the clarification that job protection applies for at least as long as any ban on employment.

Dismissing an employee during the maternity protection period is also only possible in exceptional circumstances and with an acceptance declaration by the responsible regulatory authority, which constitutes their main role in maternity protection. The basic precondition for this is that the termination has nothing to do with the pregnancy (section 17 [2] Maternity Protection Act). Furthermore, more stringent requirements, also with regard to content, apply than with an extraordinary termination under section 626 (1) German Civil Code: There must always be special circumstances which make terminating the employee unavoidable, e.g., willful breaches of contract, offenses involving property or financial risk to the employer.

With the reform of the law, protection against terminations is extended to employers’ actions of preparing a termination, Section 17 (1) sentence 3 Maternity Protection Act. Therefore, dismissals are also invalid if the termination has been declared after the protection period but preparations have been made before. This includes, for example, advertising for the employee’s job, interviewing potential successors and even obligatory consultation of the works council or an application for the acceptance declaration by the responsible regulatory authority.

Outlook

The reform of the Maternity Protection Act gives pregnant employees more autonomy to decide whether they continue working until a later stage during their pregnancy or not. It also stipulates an extension of their workplace protection as employers now even have to wait with preparations of potential terminations until bans on employment have ended. For them, the new regulations also provide a stricter obligation to monitor the working conditions of pregnant employees due to the new mandatory risk assessment. Even if highly criticized by trade unions because of the potential pressure on pregnant employees to continue working as long as possible, the Act now includes a broader range of protection, especially regarding the employee’s general health while still working. Last but not least, even more women are now able to make use of the protection offered by the Act.

axel.braun@luther-lawfirm.com