Working during pregnancy: a guide

Rights and obligations of pregnant employees and employers

The German Maternity Protection Act

Combining a job and a pregnancy carries a lot of legal weight. The special rights of women during pregnancy, after childbirth and while breastfeeding are set out in the German Maternity Protection Act (Mutterschutzgesetz). The special rights laid down there apply to full-time employees just as much as to marginally and part-time employed women and to apprentices. On top of that, further special rules apply to women working as teachers, federal government employees, domestic helpers or municipal or state employees. The only occupational group the Maternity Protection Act excludes is women who are self-employed.

The employer is obliged to comply with the maternity protection rules. Above all, that means putting the necessary protective measures in place. If risks to the pregnancy are identified at the workplace, the protective measures have to be taken in the following order:

1. Redesign of the working conditions.
2. If that is not enough, or if a redesign is not possible or not reasonable, another reasonable workplace has to be offered.
3. If that is not possible either, a workplace employment ban has to be issued.

You can find more information on working hours and the Maternity Protection Act here.

Your obligations as an employer

The most important thing you have to do when one of your employees tells you she is pregnant is to put protective measures in place. In other words, your duty is to protect the mother-to-be from work-related risks. This duty applies before you even employ any women in your business.

As soon as you have been informed about one of your employees' pregnancy, you have to:

1. Inform the trade supervisory office.
2. Put the necessary protective measures in place.
3. Inform the employee about the measures.
4. Offer her a conversation about further adjustments to her working conditions.

If it is not possible to take these measures, you have to offer your employee another workplace without risks. If that is not possible either, your employee is under a workplace employment ban.

Of course you as the employer have certain rights in this situation too. You can, for example, ask for a medical certificate or a certificate from the midwife confirming the pregnancy. You do, however, bear the costs of that.

Protection from dismissal during pregnancy

As a general rule, pregnant women in a permanent employment relationship may not be dismissed. To begin with, then, they count as protected from dismissal. There are a few exceptions where that protection does not apply:

• If the company becomes insolvent.
• If the business is shut down.
• If there is no way of continuing the business without the qualified replacement. This applies above all in small businesses.
• Where serious breaches of duty have been committed.

Under no circumstances may the grounds for the dismissal be connected with the pregnancy itself, with a miscarriage or with the birth of the child. To dismiss, the employer needs the approval of the labour and social court.

For this protection from dismissal to apply, you as the employer must have been informed about the pregnancy beforehand or at the latest five days after the dismissal. Protection from dismissal only applies after those five days have passed if the pregnancy is confirmed by a doctor and the employee informs the employer immediately. In both cases you as the employer may ask for medical confirmation, but here too you bear the costs.

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Working conditions during pregnancy

Designing the workplace for pregnant employees

When it comes to the working conditions of pregnant employees, the central point is avoiding (physical) strain on the pregnant woman. The workplace also has to be free of chemicals, emissions and other hazardous substances.

The way the workplace is set up should also be flexible. Pregnant women should be able to switch between standing and seated tasks. Purely standing work counts as a risk from the 6th month of pregnancy onwards.

Pregnant employees have to be offered a place to retreat to where they can rest. This rest should be possible not only during the break but also during regular working hours. So the employee has to have the option of putting the work down for a certain period while she is at work.

If these protective measures are not possible, the workplace has to be changed where that can be done.

Working hours for pregnant employees

The Maternity Protection Act also lays down precise rules for working hours. People covered by the Maternity Protection Act may not be employed between 8 pm and 6 am. The only exceptions apply:

• if a medical certificate says there is nothing against the longer employment,
• if the woman agrees to it and
• if any irresponsible risk to the woman or the child from working alone can be ruled out.

As for the maximum working time, the Maternity Protection Act states that anyone under the age of 18 may not work more than 8 hours a day and no more than 80 hours in total over two consecutive weeks. For those over 18, the maximum working time for pregnant employees is 8.5 hours a day and 90 hours over two weeks.

On Sundays and public holidays there is a general employment ban for pregnant employees, regardless of the general exceptions.

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Communication between employer and employee

The obligation to report a pregnancy

In principle there is no obligation to report a pregnancy. There is in fact no deadline by which the employer has to be informed about the pregnancy either. The Maternity Protection Act only states that a pregnant woman should tell her employer about the pregnancy and the expected date of delivery as soon as she knows about it.

So the information should be passed on to the employer straight after the pregnancy becomes known. That serves the woman's own protection, so that the necessary measures and arrangements can be made in good time.

What also has to be communicated, incidentally, are the start of maternity leave, the period of maternity leave together with parental leave, and the point at which maternity leave begins. A conversation of this kind should not forget to cover planning for remaining vacation and the induction of new staff.

The employer can be informed about the pregnancy in any way at all, whether by phone, in person or in writing.

Why reporting it still matters

If the pregnancy is not communicated, there are no legal consequences for the employee, but the employer cannot meet their statutory duties either. So reporting it early really only serves to protect the employee. It is true that a late notification may leave the employer unable to find a replacement, and that the employer can point this out. But the employer has to prove both the necessity and the difficulty of finding a new qualified specialist in good time – and that rarely succeeds.

So an employee can decide for herself when she tells people about her pregnancy.

Pregnancy and the job interview

A frequently asked question is whether a pregnancy has to be disclosed in a job interview. The answer is no. It does not have to be raised in the interview, nor does the potential employer have the right to ask a woman about an existing or planned pregnancy. Doing so amounts to disadvantaging and potentially discriminating against women. That is what the Federal Labour Court has ruled.

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The employment ban during pregnancy

The employment ban during pregnancy already mentioned above serves to protect mothers from strain that could harm the pregnancy.

There are three different forms of employment ban:

Official employment ban

The official employment ban is issued by the competent supervisory authority. The reason for it is the work the employee does. These occupational groups include:

• carers, elderly care and nursing staff
• childcare workers
• teachers
• doctors
• florists
• welders
• pilots.

In this case the employment ban takes effect from the very start of the pregnancy, because these are occupational groups with an increased health risk.

Workplace employment ban

The workplace employment ban applies when the employer is unable to offer the pregnant employee a workplace where the protective measures can be met. Working then means a risk to the pregnancy.

Medical employment ban

The medical employment ban can only be issued by the treating doctor. It depends on the health of the mother-to-be. As the employer you can ask for a follow-up examination, but you have to bear the cost of it yourself.

The scope of the employment ban

The employment ban only goes as far as is necessary for the health and wellbeing of mother and child. How long an employment ban lasts also depends on the work involved and on the pregnancy. With maternity leave, for example, an employment ban of six weeks before the calculated due date begins. Following medical consultation, though, it may also be shorter.

An employment ban also applies until 8 weeks after the birth. For children with disabilities, multiple births or premature births, that rises to 12 weeks.

Which activities does the employment ban cover?

There is a list of activities that count as a particular strain in the workplace for pregnant employees and as an irresponsible risk. They include:

• night work and work on Sundays and public holidays
• work with an increased risk of accidents and an increased risk of occupational illness.
• work with substances hazardous to health. Radiation, gases, vapours, wet conditions, heat or cold, vibration, noise or infectious material
• piecework or assembly line work
• work with a lot of physical strain, where the mother-to-be has to stretch, bend, squat or work in a stooped position a great deal
• work involving regular lifting or moving loads of over 5 kg without mechanical aids
• work with tools or machines that put particular strain on the feet.
• From the fourth month onwards this also covers activities where pregnant employees have to stand for more than four hours at a stretch each day, or exert themselves physically

Who covers the continued payment of wages?

Pregnant employees under an employment ban remain entitled to full pay, matching the average gross pay of the last three months. Premium pay for night and public holiday work and overtime pay are included in that.

The following formula is used:

((pay in the month before the employment ban + premiums) + (pay two months before the employment ban + premiums) + (pay three months before the employment ban + premiums) ÷ 3

During the employment ban you as the employer have to pay this regular salary. On application, though, the statutory health insurer will reimburse you for part of the outlay.

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Practical tips for employers

With pregnant employees in the business there are a lot of rules to comply with. And on top of that, things like sensitivity, communication and a supportive working relationship matter a great deal. We have put together six tips that can support you as an employer in making this time as easy as possible for you and your employees:

1. Be flexible

Pregnancies run their course very individually and every woman is different. Being flexible as an employer does not just mean offering flexible working hours and the option of working from home. You also have to show flexibility in responding to your employees' individual needs – just because one employee could still stand for six hours at a stretch in her fifth month does not mean the next one has to. You can also offer employees a reduction in hours before their doctor issues an employment ban.

2. Adapt your rooms accordingly

Offering pregnant employees an area where they can rest is required by law. But you can do more for them than simply push a couch into a small room. Pregnant employees should be given the option of working both seated and standing. In the office, a standing desk or a riser for the desk can be a good way of letting women work standing up as well. In areas where the work is normally done standing, you generally have to give women the option of sitting down after four hours; ideally they can carry on with their work during that time or take on another task.

3. Avoid overload

Women may not work overtime during pregnancy. Making sure they stick to their hours and do not go beyond a maximum working time of 8.5 hours a day is part of your duty of care as an employer. Physical strain during pregnancy is also classed as a risk and should be avoided at all costs. But emotional strain too – stress and outside pressure – can affect how a pregnancy goes.

4. Encourage work-life balance

A good work-life balance matters in every area of work in order to keep employees satisfied. The same goes for employees during pregnancy.

5. Show support

There are many ways to give your employees the feeling that they are supported. With pregnant employees in particular, showing understanding and flexibility is already two big steps. Having an open ear and recognising and accepting the employee's needs are two further important points that should not be underestimated. In general, open and lively communication between you and the employee is essential.

6. Plan the return to work early

It can help both you and your employees to look ahead as well. Of course, after the birth there can be up to three years of parental leave before the next stint at work. But if you talk about a return-to-work plan early on, you give the employee a certain security that can make coming back after the pregnancy considerably easier.

Read more about returning to work after long-term absence here.