Changes to German maternity protection

The maternity protection reform, which originally was supposed to enter into force in January 2017, is the first real change to maternity protection laws since their introduction in 1952. Instead of only cleaning up the wording of the current Act, a completely new law will be introduced. Whilst many of the general legal principles will stay the same, there will be a couple of significant new rules that employers will need to consider in their day to day operations:

• Pupils, students and interns will in future be subject to maternity protection and can apply for exemptions from exams, internships etc during their pregnancy.

• In the context of health and safety provisions employers will now be obliged to carry out an abstract risk assessment for each job with regard to its risk profile specifically for pregnant and breastfeeding employees and will on such basis have to determine whether any protective measures, changes to the role etc will be necessary with regard to such role if the jobholder becomes pregnant. This abstract risk assessment will then need to be used in specific cases of pregnant employees and relevant measures will have to be taken by the employer without undue delay upon learning of an employee’s pregnancy.
  In the public discussion this new provision has been somewhat overlooked, in practice it will however result in an additional administrative burden for HR if the process is properly complied with.

• A prohibition to work can no longer be implemented against the worker’s will. In order to avoid health risks for the employee the employer shall rearrange the employee’s workplace or shall otherwise attempt to find another suitable job for her. Only if both these options are not feasible the employer may decide to no longer employee the pregnant or breastfeeding employee. The same shall apply if the mother holds a doctor’s certificate.

• Pregnant employees shall be granted more flexibility regarding their working time. Currently the law provides for strict mandatory rules. For example employees will in future be able to decide if they want to work on Sundays or public holidays. Also the prohibition of night work will be change. Currently employees are not allowed to work between 20:00 and 06:00 - in future this may change to 22:00 to 06:00. Whereas the first draft of the new law provided this option if the employee agrees and there are no medical reasons speaking against such working time, concerns by trade unions now resulted in an additional need for an authority approval for opting out. As opting out will therefore require a detailed application by the employer, ie create the need for paperwork, it may be questionable of how much practical relevance this new option will indeed be.

• The provisions on working time and overtime will be changed. The admissible maximum working time for pregnant and breastfeeding employees is increased to 8.5 hours per day (or 90 hours over two weeks (currently 8 hours/day and 80 hours/two weeks). The employee can work overtime, however provided that over a one month period her normal contractual working time is not exceeded.

In practice in particular additional leave entitlements and dismissal protection will be of relevance. Other than the remainder of the Act these provisions will already enter into force once the Act has been passed, ie probably in the course of Q2:

• Maternity leave for mothers with disabled children shall be extended by four weeks, they will therefore have six weeks’ leave week prior to childbirth and twelve weeks thereafter. Such twelve week period already applies to mothers of twins and premature babies under the current Act.

• Pregnant employees who have a miscarriage after the 12th week of pregnancy enjoy special protection against dismissal and cannot be dismissed other than for good cause within four weeks after such miscarriage.

Especially with regard to the additional risk assessment requirements employers should adjust their current processes. Furthermore if employers should have policies on maternity leave these will need to be revised once the new law enters into force.