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Protection of pregnant workers and workers who have recently given birth or are breastfeeding

This Directive establishes guidelines for assessing the risks related to chemical, physical and biological agents, to certain industrial processes, to certain movements and postures and to physical and mental stress. It provides for provisional measures to protect pregnant workers and workers who have recently given birth or are breastfeeding against these risks and bans outright their exposure to certain chemical, physical and biological agents. It contains specific provisions governing night work, maternity leave, ante-natal examinations, employment rights and protection against discriminatory dismissal. The Directive invites Member States to allow women wronged by failure to comply with these measures to assert their rights.

ACT

Council Directive 92/85/EEC of 19 October 1992 concerning the implementation of measures to encourage improvements in the safety and health of pregnant workers, workers who have recently given birth and women who are breastfeeding (Tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC). [See amending acts].

SUMMARY

In consultation with the Member States and assisted by the Advisory Committee on Safety, Hygiene and Health Protection at Work, the Commission shall draw up guidelines on the assessment of the chemical, physical and biological agents and industrial processes considered dangerous for the health and safety of female workers in the above categories. The guidelines will also cover physical movements and postures, mental and physical fatigue and other types of physical and mental stress.

These guidelines will lay the basis for risk evaluation. In this way, for all activities liable to involve a risk, the employer or the health and safety service must determine the nature, degree and duration of exposure in order to evaluate the risks and decide what measures should be taken. Workers are to be notified of the results and of measures involving health and safety at work.

Provisional measures

Exposure of the workers in question to the above risks is to be avoided by provisionally adjusting their working conditions or their working hours. Where such adjustment is not technically and/or objectively feasible, or cannot reasonably be required on duly substantiated grounds, the employer shall take the necessary measures to move the worker concerned to another job. Where transfer to another activity is not feasible, the workers in question must be granted leave for the whole of the period considered necessary to protect their safety and health.

Work environment

Pregnant workers may under no circumstances be obliged to perform duties for which the assessment has revealed a risk of exposure to the agents and working conditions listed in Annex II, Section A, and, in the case of workers who are breastfeeding, to the agents and working conditions listed in Annex II, Section B.

Night work

Member States shall take the necessary measures to ensure that the workers concerned are not obliged to perform night work during their pregnancy and for a period following childbirth, subject to submission of a medical certificate, by transferring them to daytime work where possible, or otherwise by excusing them from work or extending maternity leave.

Maternity leave

Maternity leave must be for an uninterrupted period of at least 14 weeks before and/or after delivery, two of which must occur before the delivery.

Ante-natal examinations

Pregnant workers have the right to take leave from work without loss of pay to enable them to attend ante-natal examinations if such examinations take place during working hours.

Protection against discriminatory dismissal

Women may not be dismissed for reasons related to their condition for the period from the beginning of their pregnancy to the end of the period of leave from work. In the event of dismissal, the employer must give good grounds in writing. Measures should be taken to protect such workers from the consequences of unlawful dismissal.

Employment rights

The employment rights relating to the employment contract, including the maintenance of a payment to, and/or entitlement to an adequate allowance for the pregnant workers, workers who have recently given birth and workers who are breastfeeding* must be insured. In the case of maternity leave, the pay and allowance shall be deemed adequate if it guarantees income at least equivalent to that which the worker concerned would receive in the event of a break in her activities on grounds connected with her state of health, subject to any ceiling laid down under national legislation. This right to pay or to an allowance may be subject to certain conditions, though not the condition that a period of work of more than 12 months should have immediately preceded the presumed date of delivery.

Defence of rights

The Member States shall introduce into their national legal systems such measures as are necessary to enable workers who consider themselves wronged by non-compliance with the obligations arising from this Directive to pursue their claims by judicial process after recourse to other competent authorities.

Application

Technical adjustments to Annex I shall be adopted in accordance with the procedure laid down in Article 17 of Directive 89/391/EEC. Annex II may be amended only in accordance with Article 138 of the EC Treaty.

The Directive may not have the effect of reducing the level of protection afforded to pregnant workers and workers who have recently given birth and/or who are breastfeeding as compared with the situation which exists in each Member State on the date on which it is adopted.

Member States shall report to the Commission every five years on the practical implementation of the Directive, indicating the points of view of the social partners.

Context

The objective of this Directive is to take minimum measures to protect the health and safety of pregnant workers, workers who have recently given birth and women who are breastfeeding, who must be considered to be a specific risk group.

The Directive is a follow-up to Framework Directive 89/391/EEC concerning the implementation of measures to encourage improvements in the safety and health of pregnant workers, workers who have recently given birth and women who are breastfeeding.

Key terms used in the act
  • Pregnant worker, worker who has recently given birth or worker who is breastfeeding: a pregnant worker, a worker who has recently given birth or a worker who is breastfeeding, and who informs her employer of her condition, in accordance with national legislation and/or national practice.

REFERENCES

Act

Date of entry into force

Deadline for transposition in the Member States

Official Journal

Directive 92/85/EEC

24.11.1992

19.10.1994

L 348 of 28.11.1992

Amending act(s)

Entry into force

Deadline for transposition in the Member States

Official Journal

Directive 2007/30/EC

28.6.2007

31.12.2012

L165 of 27.6.2007

RELATED ACTS


Proposal for a Directive of the European Parliament and of the Council of 3 October 2008 amending Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or who are breastfeeding [ COM(2008) 637 final - Not published in the Official Journal].

This Proposal aims at improving the protection and rights of pregnant women, women who have recently given birth or who are breastfeeding, in order to better protect the interests of mothers and their children.

Maternity leave is extended from 14 to 18 weeks. This corresponds to 12 non-compulsory weeks that women can choose to take before or after confinement and six compulsory weeks after confinement. If the actual date of confinement differs from the presumed date, the period of leave before the birth could be extended without having an effect on the post-natal period. Moreover, additional leave may be granted in the event of premature childbirth, children hospitalised at birth, the birth of children with disabilities and multiple births.

The Proposal should also improve protection for working women and incite them to return to work after giving birth. Thus, during their maternity leave, they should receive a payment that is equal to their full salary. Member States may also however cap the allowance at the same level as for sick leave. In addition, women will have more leeway to choose the time at which they take the non-compulsory part of their leave (before or after birth). They will no longer be obliged to take a specific part of their leave before the birth, which is currently the case in some Member States.

At the end of maternity leave they have the right to return to work under equivalent conditions and to benefit from any improvements that have been made to working conditions. They may also request a re-examination of their working hours in order to better reconcile professional and family life.

Any breach of the Directive should be considered as discrimination. The Member States shall take the measures necessary to make its application effective. They should ensure in particular that their judicial systems provide rules that are favourable to victims: the burden of proof should fall upon the respondent, plaintiffs should be protected against any reprisals and dissuasive penalties should be implemented.

Communication from the Commission of 5 October 2000 on the Guidelines on the assessment of the chemical, physical and biological agents and industrial processes considered hazardous for the safety or health of pregnant workers and workers who have recently given birth or are breastfeeding [COM(2000)466 – Not published in the Official Journal].
These guidelines apply to the assessment of chemical, physical and biological agents and industrial processes considered hazardous for the health and safety of such workers. They also apply to physical movements and postures, mental and physical fatigue and other types of physical and mental stress.

Commission Report of 15 March 1999 on the implementation of Council Directive 92/85/EEC of 19 October 1992 on the implementation of measures to encourage improvements in the health and safety of pregnant workers and workers who have recently given birth or are breastfeeding [COM(1999) 100 final – Not published in the Official Journal].
The report provides a detailed breakdown of the rights of pregnant workers and workers who have recently given birth or are breastfeeding in the Member States of the Union. It highlights specific problems with implementation which have led to infringement proceedings. These include the outright ban by several Member States on night work for pregnant workers, and the lack of any compulsory maternity leave.
The report identifies other areas of concern, such as differences over which type of workers fall within the scope of the Directive, the difficulty in squaring health and security considerations with women’s entitlement to non-discriminatory treatment, and the right to return to a job.

Last updated: 30.10.2008
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