Failure to carry out risk assessment in connection with maternity leave subject to a fine as of 01 January 2019

Recast Maternity Protection Act, requirements for employers and action required

Since the amendment of the Maternity Leave Protection Act (MuSchG) in 2018, Section 10 of the MuSchG requires the implementation of a risk assessment for female employees who are pregnant or breastfeeding and, since January 1, 2019, infringement carries a fine of up to €5,000 for infringement.

The risk assessment must be carried out for each activity (organised categorically) without a specific occasion to do so being present and irrespective of whether female employees are employed at all in that particular business. It must also be carried out if no one is or can become pregnant, because, for example, no female persons are employed in the company.

The regulation is a response to, among other things, anti-discrimination legislation: jobs are to be allocated irrespective of gender and every job should in principle be suitable for a woman. The legislation also aims to ensure the best possible early and efficient protection of pregnant women. Pursuant to Section 9(2) MuSchG, the employer must design working conditions in such a way that risks to a pregnant or breastfeeding woman or her child are avoided as far as possible, and that unjustifiable risks are excluded.

The risk assessment essentially comprises three steps, under Section 10(1) No. 2 MuSchG: 

1. First, the activity must be recorded, followed by the identification of possible hazards to which pregnant or breastfeeding workers may be exposed and which relate to pregnancy or the breastfeeding period.
2. The hazards must be assessed in terms of their nature, extent and duration, particularly with regard to the risks of accidents and adverse health effects.
3. Finally, it must be determined whether, and if so which, measures are necessary to protect pregnant or breastfeeding employees. In particular, a redesign or conversion of the workspace or a relocation of the employee may become necessary as a protective measure. If no suitable protective measures are possible despite the hazards, the employer must issue an employment ban and determine that a pregnant or breastfeeding employee may not continue to work in that position. Another result of the risk assessment may be that no protective measures are required.

The purpose of this risk assessment is to determine the possible protective measures abstractly in advance and to be able to implement them quickly in an "emergency".

As soon as a female employee notifies her employer of her pregnancy or breastfeeding period, the employer must immediately implement the necessary protective measures. The employer must substantiate the risks based on the individual workspace of the employee, take the protective measures identified, offer the pregnant woman the opportunity to discuss the adjustment of her working conditions and monitor the effectiveness of the protective measures taken.

The performance of the risk assessment and the need for possible protective measures must be documented in accordance with Section 14 MuSchG. Since 1 January, 2019, breaches of this documentation obligation are also subject to a fine.

In addition, the employer must inform employees about the results of their risk assessment and possible protective measures.

Implications for practice

• In light of this reform and the related possible consequences, a risk assessment should always be carried out and documented, if this has not already been done, in order to be able to prove such action in case of doubt and thus avoid a fine. It is essential that each workspace is assessed on a job-related/categorical basis.
  
  
• Companies must deal ahead of time with the possible situation of pregnant women and nursing mothers in their daily working environment, document this sufficiently and in each individual case of a pregnancy notification, specify the necessary protective measures immediately and implement them accordingly.