Maternity protection act

This is how you are protected as a pregnant woman and mother at work

Maternity protection act

Dr. Britta Beate Schon

Britta Beate Schon is responsible for all legal topics at Finanztip. The doctor of law and lawyer worked as head of the legal department at financial service providers such as Telis Finanz AG and Interhyp. Previously, she taught and researched in Japan as a DAAD junior professor of German and European law. She studied in Munster, Geneva, Regensburg and Leipzig. You can reach the author at [email protected]

  • The Maternity Protection Act protects you as a working mother before and after giving birth.
  • You do not have to work for the last six weeks before delivery; you are not allowed to work for eight weeks after delivery.
  • During these weeks, you will receive maternity benefits from the health insurance fund and an allowance from your employer – in total, the average net salary of the last three months.
  • Only if your employer knows about your pregnancy, he can and must protect you accordingly. Therefore, inform your employer as soon as you are sure you are expecting a child.

In this guide

Pregnancy is exciting. There is a lot to organize and many questions arise: How long do you have to work and what is the financial situation?? The regulations in the Maternity Protection Act protect you from Health hazards at work, prohibit dismissals and secure your income in the time when you are not working.

Who is protected by the Maternity Protection Act?

The Maternity Protection Act applies to all pregnant and breastfeeding women Female employees, regardless of whether they work full-time or part-time or are still in vocational training. The law also applies to women who have a mini-job. If you are doing a voluntary social year and become pregnant, you are also protected (§ 1 para. 2 no. 4 MuSchG). If you work freelance or self-employed and get pregnant, you have no special protection.

Temporary employees – If you are employed on a temporary basis, you are also covered by the Maternity Protection Act, but only for as long as your employment relationship continues. A fixed-term employment relationship ends with the agreed expiry date, even if you are pregnant and should not be dismissed according to the law. With a fixed-term contract you are thus much worse off than a woman with an employment contract without a fixed term. If you are still planning a family, you should think carefully before accepting a temporary position.

During the probationary period – During the probationary period, your employer can generally terminate your contract more quickly, but not if you are pregnant.

Schoolgirls and students – Since 1. As of January 2018, female pupils and students are also generally protected by the Maternity Protection Act if the school or university prescribes the place, time and procedure of the training or the women complete a mandatory internship. However, special rules apply (§ 1 para. 2 no. 8 MuSchG).

Employees similar to employees – These are women who are self-employed but are economically dependent on their employer without being integrated into the employer’s operations. Anyone who works in this way and becomes pregnant is generally protected by the Maternity Protection Act.

Civil servants, judges and soldiers – Civil servants, judges and employees of the German Armed Forces cannot invoke the Maternity Protection Act (§ 1 Para. 3 MuSchG). However, these women are protected by special regulations in civil service law, namely by the so-called Maternity Protection and Parental Leave Ordinance (MuSchEltZV) for the federal administration and the corresponding ordinances in the federal states, as well as by the Maternity Protection Ordinance for female soldiers.

Inform your employer

As soon as you are sure that you are expecting a child, you should inform the employer about the pregnancy and the expected date of birth – usually after you have been to your gynecologist, who has issued you with a maternity passport. Only when the employer knows about it, he can observe the special regulations for your protection. You are not required to present a medical certificate. However, if your boss wants to see a medical certificate, this is permissible, but he must bear the costs for it.

Afterwards your boss reports your pregnancy to the responsible supervisory authority (§ 27 Abs. 1 MuSchG). The Federal Ministry of Family Affairs has compiled a list of the responsible authorities in the individual federal states on its website.

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Are overtime and night shifts allowed?

Pregnancy is not an illness. Nevertheless, employers must observe certain principles in order to protect the health of pregnant employees.

Stricter regulations on working hours

Expectant and nursing mothers are generally not allowed to work between 8 p.m. and 6 a.m; Night shifts or also On-call duty therefore come no longer in question (§ 5 MuSchG). For work after 8 p.m. to 10 p.m., there is an official approval procedure that the employer can initiate. Among other things, the woman must expressly declare her willingness to work after 8 p.m.

According to the Maternity Protection Act, you are also not allowed to work on Sundays and public holidays. The perhaps otherwise usual overtime is also excluded during pregnancy. Pregnant women of full age are not allowed to work more than eight hours and 30 minutes a day (§ 4 MuSchG). Since the 1. January 2018 there is also a special regulation on the permissible overtime for pregnant part-time employees. If you work part-time, you are not allowed to work overtime that exceeds the contractually agreed weekly working hours on average for the month (§ 4 para. 1 sentence 4 MuSchG).

Your workplace must look like this

The workplace must be set up during pregnancy and after delivery in such a way that the health of the pregnant woman or the young mother is not endangered. If you work predominantly standing up, you must be able to sit down from time to time. The work on the computer does not endanger the health of mother and child – for this reason alone, the doctor will not issue an employment ban, although sitting for too long is also not good for pregnant women.

Your employer must offer you a personal meeting to discuss further adjustments to working conditions (§ 10 para. 2 MuSchG). In case of doubt, the supervisory authority will clarify whether the specific workplace and the specific working conditions could endanger the expectant or nursing mother. Women can contact the supervisory authority if they have any questions.

From when does a ban on employment apply?

Pregnant women may only work up to a certain point before the birth. After the birth, you must also stay at home for a period of time.

six weeks before delivery

In the last six weeks before delivery you no longer have to work. However, you can work longer if you want to (§ 3 para. 1 MuSchG). To calculate the period, you must submit a medical certificate stating the expected date of birth. From this day you count back six weeks. Is for example Wednesday, 21. September, your expected date, the protection period begins on Wednesday, 10. August. The 9. August would then be your last working day.

Eight weeks after the birth

After childbirth you may If you are not born work. During this time, there is an absolute ban on employment (§ 3 para. 2 MuSchG). You are not allowed to work even if you would be willing to do so. If the child is born later than expected, the period of protection after delivery is not shortened. The actual maternity protection period is then longer.

Twelve weeks after birth in special cases

Do you have twins you may stay at home for twelve weeks (§ 3 para. 2 MuSchG). This also applies if your child at birth is less than 2.500 grams or if the child is born earlier than expected and therefore requires more care. In the case of premature birth as well as in the case of any other premature delivery extended after the birth, the protection period is extended by the period that the mother was unable to take before the birth. Since the reform of the Maternity Protection Act, the protection period also applies to mothers whose child has a Disability has been established, an extended protection period of twelve weeks after the birth of.

Employment ban due to unsuitable workplace

Your employer must issue a temporary or permanent ban on employment, provided that your workplace is in principle not suitable for pregnant women no protective measures are possible, no alternative workplace can be offered and partial release is not expedient (§ 13 para. 1 No. 3 MuSchG). This affects many women who are in Nursing and health care work. These activities are often too physically demanding for pregnant women or involve risks of infection.

As soon as you have informed your boss about your pregnancy, she must issue an employment ban, at least for a limited period, in order to protect you. If you have any questions, you can contact the responsible office for occupational health and safety; these are often the trade supervisory offices.

Medical prohibition of employment

A doctor can in individual cases prohibit you from continuing to work during your pregnancy, even if you are not ill (§ 16 MuSchG). This may be the case if continued employment endangers the life or health of mother and child. A medical certificate is required.

The doctor decides whether, due to complications that have arisen, you are incapacitated for work is (then continued payment of wages by the employer) or whether she is not allowed to work or partially not allowed to work because of an employment ban, although she is not ill. Then the sickness insurance pays. More on this later.

Women who take kindergarten or a daycare center If you are employed as a nurse, you may no longer work during pregnancy, for example, if you have not been vaccinated against chickenpox or have not had the disease yourself. Then there is usually a ban on employment. Incidentally, this applies to a large number of possible infections such as measles, mumps, rubella or hepatitis and depends on the age of the children as well as the exact activity of the pregnant woman.

If the employer is no longer allowed to employ the pregnant or breastfeeding woman with certain work, he can give her a leave of absence other activity that does not put her at risk. A doctor may no longer be allowed to operate, but she can make patient consultations or rounds. The new tasks must not cause any financial disadvantages for the woman concerned.

It is also not always easy for doctors to decide whether the patient you are incapacitated for work or whether an Employment ban is to be pronounced. Those who are constantly nauseous and vomiting are usually given temporary sick leave. Even back pain or gestational diabetes do not usually lead to an individual ban on employment.

ImportantContinued payment of wages in the event of illness normally ends after six weeks, after which sick pay is paid and this is less than the regular salary. This restriction does not exist in the case of maternity protection pay due to a ban on employment.

Special features for schoolgirls and students

The protection period after childbirth is not binding for these mothers. You may return to school or university before the end of the protection period.

How are pregnant women and mothers financially protected?

To protect women from financial disadvantages during this time, the Maternity Protection Act regulates various maternity benefits.

Maternity protection pay

If a woman is not allowed to continue working during pregnancy because of an increased risk to life and health, she receives parental allowance for the Time of the employment ban their Salary continues to be paid (§ 18 MuSchG). This even applies if the employee was unable to take up work with a new employer due to a high-risk pregnancy (LAG Berlin-Brandenburg, ruling of 30. September 2016, Az. 9 Sa 917/16). The employer is reimbursed in full for the amounts to be paid due to the pay-as-you-go procedure. The maternity protection wage is considered a normal wage. You have to pay taxes and social security contributions on it.

Maternity benefit and allowance from the employer

Six weeks before birth and eight weeks after birth Employees receive maternity benefits from the statutory health insurance fund (§ 19 of the Maternity Protection Act) and an allowance from the employer (§ 20 of the Maternity Protection Act). The payments correspond in total to the average net salary of the last three months. You have to apply to the health insurance fund and your employer for this. What you should pay attention to, you can read in our guide mother-ter-schafts-geld.

All employers – regardless of the number of employees – receive the paid allowances to the Mut-ter-schafts-geld during the six weeks before and eight weeks after the delivery according to the "U2 procedure" reimbursed. This also applies to the so-called maternity protection pay that an employer must pay for the duration of a ban on employment.

Paid breaks – If you have to attend a preventive medical checkup or breastfeed your child, the employer must grant you paid breaks for this purpose (§§ 7, 23 MuSchG). You also do not have to work the times before or after. Financially you have thereby no loss.

Parental allowance – Those who do not want to return to work immediately after the maternity leave period can take parental leave. You can find out how you are financially secured in the guide to parental allowance.

How are pregnant women and mothers protected under labor law??

You are also well protected legally if you are expecting offspring as an employee.

Vacation entitlements

Even if you are not allowed to work during pregnancy due to a ban on employment, you are still entitled to vacation. The employer may not reduce these. If you are still entitled to remaining vacation days, you can take them even after the protection periods, for example, even after parental leave. Therefore, if your employment contract contains the clause that the leave must be taken by the end of March of the following calendar year, your leave will not be forfeited if you are on maternity or parental leave.

Protection against dismissal

During the entire pregnancy, i.e. from the first day, and until the expiration of four months after the delivery, there is Protection against dismissal for both ordinary and summary dismissals, for notices of change or termination during the probationary period (Section 17 MuSchG). However, this only applies if the employer knows about your pregnancy. If you have not yet informed him and he gives notice, you must inform him within two weeks that you were already pregnant when you received the notice.

So that you have proof in your hands, it is best to send the letter by registered mail. If you become pregnant after you have received notice of termination, the prohibition on termination does not apply.

Who Miscarriage Since the reform of the Maternity Protection Act, a woman who suffers a miscarriage now also has protection against dismissal until the expiry of four months after a miscarriage after the twelfth week of pregnancy (§ 17 para. 1 no. 2 MuSchG).

Exceptions – In exceptional cases, the employer can also terminate the employment of a pregnant employee. However, this is only possible if he does not want to terminate the employment relationship because of the pregnancy, but for another reason, and the authority responsible for occupational health and safety declares the termination permissible by way of exception (§ 17 Para. 2 MuSchG). The reasons for such a request can be divided into three categories: Insolvency of the employer, closure of a business or part of a business, and termination for reasons of conduct.

In 2011, approximately 1.200 such applications for "declaration of admissibility" filed. According to the Federal Statistical Office, about 650 of these dismissals were approved. A dismissal due to insolvency of the employer usually agrees to the authority, a behavioral dismissal usually rejects the authority.

During parental leave – If you go on parental leave after the birth of your child, your employer may not terminate your employment during parental leave. The protection against dismissal is extended beyond the period of four months after the birth of the child until the end of the registered parental leave (§ 18 BEEG).

Action for protection against dismissal – Even if your employer violates the Maternity Protection Act and terminates your employment unlawfully, you must defend yourself in court and file an action for protection against dismissal with the labor court within three weeks. If you do not file a complaint, the termination is considered effective from the beginning.

You do not need a lawyer in court. If you nevertheless hire a lawyer to defend you against the illegal termination, you will have to reckon with costs. In a labor court case, each party pays for his lawyer in the first instance, regardless of whether he wins or loses the case. A legal protection insurance, which also covers the area of labor law protection, helps against this.

Asking about pregnancy in the job interview

It happens all the time: You apply for a new job and during the interview your interviewer asks you if you are pregnant or how you are planning your family. Basically, the boss is not allowed to ask about pregnancy, and you do not have to give any information about it. You even have the right to lie. This also applies in the event that you are to be hired as a temporary pregnancy replacement and are pregnant yourself (LAG Cologne, ruling dated 11 December 2009). October 2012, Az. 6 Sa 641/12).

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