Maternity protection in the employment relationship: protection for mother and child

Expectant mothers bear a considerable responsibility, not only for themselves, but also for the life that is developing within them. Therefore, these pay particular attention to their health during pregnancy. This applies increasingly as the pregnancy progresses. The state also has a duty of care for the mother and the developing child.

In many workplaces, expectant mothers can come into contact with influences that are harmful to the child. In addition Damage to mother and child with a certain degree of physical strain. It is also intended to prevent expectant mothers from being disadvantaged in the context of employment relationships and thereby losing their financial independence. For this reason, the legislator has created the Maternity Protection Act to fulfill its duty of care.

The Maternity Protection Act creates a special protection for female employees already during pregnancy. This protected status also remains after the birth for the breastfeeding period exist.

Maternity protection covers various regulations. This concerns

• The Health protection in the workplace and during the breastfeeding period
• One special protection against dismissal
• A Employment ban for a certain period of time Before and after the birth
• The financial maternity benefits to secure income during the employment ban.

The Maternity Protection Act applies only for expectant mothers who are employees. The type and scope of the employment relationship is irrelevant. The protection therefore also covers mini-jobs, vocational training and working from home. Interns, pupils and students are also covered. However, as maternity protection is linked to the employment relationship, in the case of fixed-term employment it only applies for as long as the fixed-term contract lasts. A fixed-term employment contract can also expire and therefore end during the period of maternity protection. There is no entitlement to an extension of the fixed term.

Housewives and self-employed women who are not in a dependent employment relationship are therefore not covered by the protection of this law. This also applies to women who hold an executive position within a company.

Adoptive mothers are also not included because the provisions of the Maternity Protection Act are directly linked to an actual pregnancy and the associated breastfeeding after the birth.

A distinction must be made here between maternity protection itself and the maternity protection period or maternity protection period.

Maternity protection in itself refers to the special legal protection status of a mother. This applies from the start of the pregnancy.

The term maternity protection period or maternity protection period refers to the period during which the expectant mother is prohibited from working. This period usually begins 6 weeks before the expected date of birth and lasts until 8 weeks after the birth. It is therefore a period of 14 weeks.

In special exceptional cases, however, the employment ban begins as soon as the pregnancy is recognized. This is the case in employment relationships where there is otherwise a risk to the expectant child, for example due to contact with pathogens or chemicals.

If the child is born a few days before the expected date of birth, these days are added to the maternity protection period after the birth, so that the period of 14 weeks remains. However, if the child is born a few days after the expected date of birth, the 8 weeks after the birth remain unchanged. The maternity protection period is then just over 14 weeks.

The situation is different if the child is born considerably earlier and is therefore premature or if you give birth to twins, triplets or multiples. In these cases, the maternity protection period is extended to 12 weeks after the birth. If the child is severely disabled, the maternity protection period can also be extended to 12 weeks if this is requested from the health insurance fund.

A distinction must be made here between the time before the birth and the time after the birth.

During the maternity protection period before the birth, it is generally possible for the expectant mother to waive the employment ban. She must expressly express this wish to the employer. The waiver can be revoked at any time afterwards. In this case, the employment ban applies immediately after the declaration of revocation.

However, a waiver is not possible if the employment ban is issued by an authority or a doctor before the birth. This is the case for activities that pose a significant risk to the expectant mother, such as handling harmful chemicals.

It is generally not possible to waive the maternity protection period after the birth. This also applies if the child is given up for adoption after birth. The only exceptions are for pupils and students. Another exception is in the case of a stillbirth. In such a tragic case, it is possible for the employee to waive the remaining maternity protection period after just 2 weeks.

In principle, the Employee decides for herself, when she informs the employer of her pregnancy. However, it should be borne in mind that the employer can only implement maternity protection effectively if it is aware of the pregnancy.

In certain constellations, the employee's position in the company may also result in an obligation under the employment contract to inform the employer promptly about the pregnancy. This is the case, for example, if the employee holds a key position in the company or if a replacement would first have to be trained over a longer period of time.

However, if the applicant is asked about her pregnancy during a job interview, she is generally not obliged to answer this question truthfully. As this question is generally inadmissible, the employee may also lie in this case. As soon as the employment relationship is established, maternity protection applies. This does not require a written contract, as the employment contract can also be established verbally or by conclusive action. The latter is the case, for example, if the commencement of employment is in agreement with the employer.

In order to protect the mother and the developing child, employees are no longer allowed to carry out activities that pose an irresponsible risk. The Maternity Protection Act provides some examples of this. This concerns activities in which;

• there is or may be contact with hazardous substances, radiation, dust, gases, vapors and infectious material,
• the employee is exposed to heat, cold, moisture, vibrations or noise,
• there is a stressful working environment, for example in hyperbaric or negative pressure chambers or in an oxygen-reduced atmosphere,
• piecework and assembly line work must be performed
• loads of more than 5 kilograms have to be lifted, held, moved or transported regularly or occasionally,
• which are associated with a forced posture or, from the 6th month of pregnancy, with a lack of movement,
• a means of transport itself is operated,
• night work and work on Sundays and public holidays, except in strictly exceptional cases,
• the maximum working hours are not complied with, whereby activities with different employers are added together.

To ensure this, the employer must take the following measures, exhausting all existing options in accordance with a defined hierarchy:

1. First of all, the employer must carry out a risk assessment and adapt the working conditions at the workplace of the pregnant or breastfeeding employee accordingly.
2. If it is not possible to redesign the workplace, it must be checked whether the employee can be transferred to another suitable workplace.
3. If this is also not possible, the employer is obliged to issue a company ban on employment.

The special protection against dismissal under the Maternity Protection Act applies from the onset of pregnancy. It is irrelevant whether the expectant mother or the employer knows about the existence of the pregnancy. Therefore, if an employer dismisses an employee and she only finds out later that she was already pregnant at the time of dismissal, she can take legal action against this dismissal. To do so, she must inform the employer of the pregnancy. This must generally be done within 2 weeks of the dismissal. However, if the employee only finds out about the pregnancy after these two weeks have expired or if she was prevented from notifying the employer for other reasons, she can do so immediately and thus render the dismissal invalid.

During the period of maternity protection, i.e. from the beginning of the pregnancy until the end of the protection period after the birth, dismissal is generally not possible. Exceptions only exist in individual cases where there is no connection with the pregnancy.

This is the case, for example, if the business is shut down, the employer becomes insolvent or if there is a particularly serious breach of duty that justifies extraordinary dismissal. However, the employer must submit an application for approval to the competent supervisory authority prior to termination. Only with this approval is the employer entitled to terminate the contract.

It is important to note that in the event of dismissal, it is essential to file an action for protection against dismissal with the labor court within 3 weeks. If this is not done, the dismissal is effective, even if the complaint is obviously inadmissible. If the employee only learns that she was pregnant at the time of dismissal after the three-week period has expired, she can immediately file an application for the delayed action to be admitted.

However, the pregnant woman herself can terminate the contract at any time within the scope of her contractual right of termination.

The existing leave entitlement is not affected by maternity protection and the maternity protection period. The period during the employment ban is treated as if the employee had worked regularly.

Any remaining leave that existed before the ban on employment can be carried over into the current or next leave year and then taken. If the employee takes parental leave immediately, the remaining leave can also be taken after parental leave.

If the employee becomes pregnant again during her parental leave, this does not mean that her parental leave automatically ends when the new maternity protection period begins. However, in order to be able to use the maternity protection period, it is possible to terminate parental leave prematurely. The employer must be informed of this procedure in good time. However, his or her consent is not required.

Parental leave ends at the earliest when the employer is informed on the date specified by the employer. This is also possible if the maternity protection period has already begun. There is no deadline for ending parental leave. However, retroactive termination is not possible.

If parental leave is not terminated prematurely, the employee receives at most the maternity benefit without the employer's allowance. However, if parental leave is terminated prematurely, the same rules apply as before the start of parental leave. The employer's contribution to maternity pay is then based on what the employee would have earned after parental leave without maternity leave.

If the employee has worked part-time during parental leave and does not end her parental leave early, the maternity allowance is based on the amount of part-time earnings. If, on the other hand, she ends her parental leave prematurely, the amount of the allowance is based on the original income before parental leave. In these constellations in particular, it can therefore be worthwhile ending parental leave early.

Maternity benefit ensures that the financial independence of the pregnant employee is maintained during the period of inactivity. It is paid either by the health insurance fund or by the Federal Social Security Office. However, a prerequisite for receiving maternity benefit is that the employee does not actually work during the employment ban.

A distinction must be made as to whether the maternity benefit is paid by the health insurance fund or the Federal Social Security Office.

Maternity benefit from the health insurance fund

Maternity benefit must be applied for from the health insurance fund if the employee is compulsorily insured under the statutory health insurance scheme. For those with voluntary statutory insurance, the entitlement only exists if there would also be an entitlement to sickness benefit.

The amount of maternity benefit is calculated on the basis of the average net pay per day of the last three billed calendar months before the start of the maternity protection period, up to a maximum of EUR 13 per day or EUR 390 per month.

Maternity benefit from the Federal Social Security Office

If there is no entitlement to maternity benefit from the health insurance fund, for example because the employee has statutory family insurance or private health insurance, maternity benefit must be applied for from the Federal Social Security Office.

However, the prerequisite is that she does not receive any remuneration from the employment relationship due to the maternity protection period and that she was not lawfully dismissed.

Maternity benefit is calculated in the same way as for health insurance. However, the maximum amount is lower. This is limited to a maximum of 210 euros per month.

Subsidy from the employer

In addition to maternity benefit, there is usually an entitlement to a supplement from the employer if the average net income exceeds EUR 13 per calendar day or the respective maximum amount. The employer is then obliged to compensate the resulting difference for the duration of the maternity protection period as a supplement to the maternity allowance. However, this compensation amount is reimbursed to employers on request by means of the so-called levy-2 procedure.

It should be noted that the receipt of maternity benefit is always offset against the parental allowance. There is no longer an entitlement to parental allowance for the days on which parental allowance was received but maternity allowance was paid.

Maternity pay is paid to employees who are not allowed to work or are only allowed to work part-time outside the maternity protection period due to a ban on employment. It is paid by the employer and is based on the amount of the last three average monthly salaries before the start of the pregnancy. The employer must continue to pay taxes and social security contributions.

Maternity pay therefore prevents the pregnant employee from suffering a financial disadvantage as a result of the ban on employment.

Employers can also apply for full reimbursement of these expenses through the Levy 2 procedure.