In May 2017, the German Federal Government passed a reform known as the German Maternity Protection Act, aimed at protecting the health and well-being of the woman and her (unborn) child during pregnancy, after birth and during the nursing period.

Amendments Effective May 30, 2017

Two particular amendments already took effect on May 30, 2017. First, extended leave is now available to mothers who give birth to children with disabilities. These mothers are entitled to an additional four weeks, for a total of twelve weeks of maternity protection after the birth, according to the new law.

Second, the amendments include a broader protection against dismissal for employees who suffer miscarriages. Dismissal of a woman who had a miscarriage after the twelfth week of her pregnancy is unlawful, for a period of four months, regardless of the weight of the fetus.

Amendments Effective January 1, 2018

In addition, the amended Maternity Protection Act brings several other significant changes that become operative next year. First and foremost, the reform extends maternity protections to persons in an employee-like relationship, e.g. managing directors, as well as to school pupils, students and interns.

Second, the Maternity Protection Act will expand the special protection against dismissal. Indeed, employers will be prohibited from engaging in “preparatory measures” as well as from dismissing the employees covered by the Act. The new law, however, does not stipulate exactly which measures are included in the definition of “preparatory measures.”

Third, employers will be obliged to assess the risk to which a woman who is pregnant or breast feeding will be exposed for every activity, and to consider potential accommodations. This duty exceeds the general risk assessment and will involve considering the specific risks for each workplace. If the assessment reveals an “irresponsible risk,” the employer must alter the working conditions through protective measures. The legislature intends to provide more detailed information for employers and authorities on the currently undefined term of “irresponsible risk” by the time the law takes effect.

In evaluating the risks to covered employees, the employer must confer with the expectant or lactating mother about the planned changes to her working conditions. The mother can be required to work at a different, suitable workplace if: (1) an accommodation of her current workplace is not possible; or (2) an accommodation is possible only through the disproportionate effort of the employer. If the employer cannot provide a safe workplace, the employee will be placed on paid leave with the ability to resume her position following childbirth.

The reforms taking effect next January also grant employers greater flexibility regarding the employee's working hours. Under the amendments, the existing ban on work on Sundays and public holidays is being relaxed. With the pregnant or lactating employee’s consent, work on Sundays and public holidays will be possible to the same extent as permitted for other employees.

Finally, the amendments to the Maternity Protection Act will allow covered employees to work at night, with consent and if certain criteria are satisfied. At the moment, working from 8 p.m. to 6 a.m., with limited exceptions, is prohibited for pregnant or nursing employees. Under the reforms, official approval can be granted for the employee to work until 10 p.m. Night work will be permissible if the woman gives her consent, if there are no concerns from a medical point of view, and if the late work causes no “irresponsible risk” to the pregnant woman or her unborn child. The employee would need to provide a medical certificate indicating her ability to work late without risk. In rare exceptions, the supervisory authority (from a government agency) can also approve employment after 10 p.m. if justified.

Conclusion

Employers with operations in Germany must remain aware of their developing obligations under the Maternity Protection Act, including the expansions that have already taken effect. In the future, employers will have to consider the additional rights offered to pregnant and nursing employees, including rights to workplace accommodation of safety risks and to greater control over their hours of work. In many respects, great uncertainty still remains with regard to the changes in the law. Clarification from the legislature on the meaning of “irresponsible risk” is eagerly anticipated. It also remains to be seen which measures will be considered unlawful “preparatory measures” by the courts, within the framework of the extended protection against dismissal.