EU: Parliament proposes major overhaul of Pregnant Workers Directive

The European Parliament adopted in October 2010 a set of proposed amendments to the EU Pregnant Workers Directive, including 20 weeks' maternity leave on full pay, two weeks' paid paternity leave, adoption leave and time off for breastfeeding.

On this page:
Main provisions of the Pregnant Workers Directive
Commission's proposed amendments
Parliament seeks major changes
Maternity leave and pay
Multiple births and disabilities
Paternity and adoption leave
Time off for breastfeeding
Night work and overtime
Employment rights
Other issues
Next steps.

Main provisions of the Pregnant Workers Directive

The Pregnant Workers Directive (Directive 92/85/EEC on measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding) (on the EUR-Lex website) was adopted in 1992. The main provisions of the Directive, which had to be implemented in the national law of the member states by October 1994, are as follows:

• Working mothers are entitled to a continuous period of maternity leave of at least 14 weeks, allocated before and/or after confinement. This includes two weeks of compulsory leave, allocated before and/or after confinement.
• A worker on maternity leave is entitled to a payment or an allowance that guarantees an income equivalent to at least that which the worker concerned would receive in the event of a break in her activities on grounds connected with her state of health (that is, equivalent to sick pay), subject to any ceiling laid down under national legislation. Entitlement to pay or an allowance may be subject to eligibility criteria, although these cannot require a period of previous employment in excess of 12 months.
   

   

  The Directive currently provides for a minimum of 14 weeks' maternity leave, with a payment or allowance at least equivalent to sick pay.

   
• During maternity leave, workers maintain all rights connected with the employment contract, other than rights to normal pay.
• Workers may not be dismissed from the beginning of their pregnancy to the end of maternity leave, except in exceptional cases not connected with their condition that are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent. If employers dismiss workers during this period, they must give duly substantiated grounds for the dismissal in writing. Member states must take the necessary measures to protect workers from the consequences of unlawful dismissal during the pregnancy/maternity period.
• Employers must assess the health and safety risks to pregnant or breastfeeding workers of exposure to a range of potentially hazardous agents, processes or working conditions (based on annexes to the Directive and guidelines drawn up by the Commission).
• If the assessment reveals a risk to the pregnant or breastfeeding worker's health and safety, the employer must adjust her working conditions and/or hours to avoid exposure to the risk. If this is not feasible, the worker must be moved to another job, and if such a move is not feasible, she must be given paid leave.
• Pregnant and breastfeeding workers may under no circumstances be obliged to perform duties that involve exposure to certain particularly dangerous agents and working conditions (laid down in annexes to the Directive).
• Workers must not be obliged to perform night work during pregnancy or for a certain period afterwards (to be determined by the relevant national authorities) and must be given the possibility to transfer to day-time work or (where this is not feasible) take paid leave.
• Pregnant workers are entitled to time off, without loss of pay, to attend antenatal examinations, if these examinations have to take place during working hours.

Commission's proposed amendments

In October 2008, as part of a package of measures on work-life balance, the Commission proposed a draft Directive amending the Pregnant Workers Directive. These amendments focused mainly on the Directive's provisions on maternity leave and employment protection. The Commission proposed the following main changes to the Directive:

• Increasing the minimum maternity leave to 18 consecutive weeks before and/or after confinement.
• Increasing the compulsory period of leave to six weeks, to be taken after childbirth.
• Allowing workers to choose freely when the non-compulsory portion of leave is taken, which may be before or after childbirth.
• Extending the prenatal portion of maternity leave by any period elapsing between the presumed and actual date of childbirth, without the remaining portion of leave being reduced.
• Preventing any period of sick leave due to illness or complications arising from pregnancy occurring four weeks or more before confinement from affecting the duration of maternity leave. 
• Introducing additional maternity leave in the case of premature childbirth, children hospitalised at birth, children with disabilities and multiple births - the duration of this additional leave would be set by member states, but should be "proportionate" and accommodate the special needs of the mother and the child/children.
• Requiring a payment or allowance during maternity leave that guarantees an income equivalent to the worker's full pay, although this could be subject to a ceiling laid down by national legislation, which may not be lower than the rate of sick pay.
• Giving women returning from maternity leave a right to return to their jobs or to equivalent posts on terms and conditions that are no less favourable to them, and to benefit from any improvement in working conditions to which they would have been entitled during their absence;
• Giving women returning from maternity leave a right to request changes to their working hours and patterns - employers would be obliged to consider such requests, but not necessarily to grant them.
• Widening the protection against dismissal during the pregnancy/maternity period to include "all preparations for a dismissal".
• Extending the obligation on employers to give duly substantiated grounds in writing for dismissal during the pregnancy/maternity period to dismissals in the six months after maternity leave, if the worker concerned requests this information.
• Giving pregnant workers who are excluded from work by their employer, because it considers them "not fit for work without medical indication supplied by the worker", a right to receive a payment equivalent to their full salary until the beginning of maternity leave.

Parliament seeks major changes

The draft amending Directive is subject to the "ordinary" co-decision legislative procedure between the Council and the Parliament. The first step in this procedure is a first reading by the Parliament.

In April 2009, the Parliamentary Committee on Women's Rights and Gender Equality adopted a first-reading report on the Directive, proposing numerous strengthening amendments to the Commission's draft, which was due to be voted on at a plenary session of the Parliament in May. However, the vote was postponed and the report was referred back to the Committee, as it was opposed by many MEPs. The Committee adopted a new report in February 2010 and the parliamentary first reading was finally given on 20 October 2010. MEPs adopted the report with 390 votes in favour, 192 against and 59 abstentions.

The Parliament is calling for a major overhaul of the Pregnant Workers Directive, strengthening many of the amendments proposed by the Commission and adding a range of new rights outside the areas of maternity leave and employment protection targeted by the Commission's draft. Whereas the stated purpose of the current Directive is to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or who are breastfeeding, the Parliament wants to broaden the aims to include: improving the conditions for these workers to remain in, or return to, the labour market; and ensuring better reconciliation of professional, private and family life.

In this article we outline the main changes and additions to the current Directive and to the Commission's draft, as proposed by the Parliament.

Maternity leave and pay

The Parliament wants the minimum period of maternity leave to be increased to 20 weeks before and/or after confinement (rather than the 18 weeks proposed by the Commission). During maternity leave, employees would receive their full pay or an allowance equivalent to 100% of their last or average monthly salary. The Commission's stipulation that member states could subject this to a ceiling, no lower than the rate of sick pay, would be dropped. Further, member states could no longer make entitlement to maternity pay or allowances subject to eligibility criteria.

During the last four of the 20 weeks, member states that have a family-related leave scheme (for example, parental leave) could place workers on maternity leave on this scheme, as long as the scheme provides overall protection to workers equivalent to that laid down in the Directive. During this four-week period, the maternity pay/allowance could be reduced to no less than 75% of the worker's last or average monthly salary.

Where a member state has maternity leave of at least 18 weeks, it could decide that the requirement for a 19th and 20th week is met through paternity leave allocated to the father, on the same level of pay.

The Parliament agrees with the Commission that at least six weeks of the maternity leave must be taken after childbirth (without prejudice to existing national laws which provide for a period of compulsory maternity leave before childbirth), adding that this leave must be fully paid. This would apply to all workers, regardless of the number of days worked prior to confinement. This post-childbirth period of leave could be shared with the father, in accordance with national legislation, if the couple agrees and so requests.

Under the Parliament's proposals, member states would have to ensure that workers can decide freely and without compulsion whether or not to take the non-compulsory period of maternity leave before childbirth. Workers would be required to indicate when they intend to take the non-compulsory portion of leave no later than one month before the commencement of the leave.

Multiple births and disabilities

The Commission proposed unspecified additional maternity leave in the cases of premature childbirth, children hospitalised at birth, children with disabilities and multiple births. The Parliament adds to this list cases in which the mother has disabilities, and specifies that all additional leave should be on full pay. It proposes additional leave of at least eight weeks after the birth in the case of the birth of a disabled child and additional leave of six weeks in the case of a stillbirth.

In the event of multiple births, the compulsory six-week period of maternity leave after childbirth would be increased for each additional child, in accordance with national legislation.

The text adopted by the Parliament states that member states must ensure that there are special working conditions to help the parents of children with disabilities.

Paternity and adoption leave

The Parliament proposes adding to the Directive new provisions on paternity leave and adoption leave, issues not dealt with in the Commission's draft.

Workers whose life partner has recently given birth would be entitled to a continuous period of non-transferable paid paternity leave of at least two weeks. This would be granted on an equivalent basis to maternity leave (except with regard to the leave's duration) and taken after the confinement of the partner but within the period of maternity leave. Member states are strongly encouraged to make taking this leave compulsory in order to promote "equal participation of both parents in balancing family rights and responsibilities".

Workers whose life partner has recently given birth would also be granted a period of special leave, including the unused portion of maternity leave, in the event of the death or physical incapacity of the mother.

The Directive's provisions concerning maternity and paternity leave would, the Parliament proposes, also apply in the event of adoption of a child aged under 12 months.

Time off for breastfeeding

Another new area broached by the Parliament's proposal is the introduction of a right to time off for breastfeeding purposes.

A mother who is breastfeeding her child would be entitled to time off for this purpose, to be taken in two separate periods (presumably per working day, although the text does not specify this), each lasting one hour, unless another arrangement has been agreed with the employer, without losing any privileges connected to her employment. In the event of multiple births, the leave referred would be increased by 30 minutes for each additional child. For part-time workers, the leave would be reduced proportionately, but would not be less than 30 minutes.

Night work and overtime

The current Directive states that pregnant workers and workers who have recently given birth or who are breastfeeding cannot be obliged to perform night work during their pregnancy and for a period following childbirth to be determined by the national health and safety authority, subject to submission of a medical certificate stating that this is necessary for the worker's safety or health.

The Parliament wants to add overtime to night work as an activity that the workers concerned cannot be obliged to perform, and a medical certificate would not be required for refusing to work overtime. The ban on obliging workers to perform night work or overtime would apply during: the 10 weeks prior to the due date of childbirth; the remainder of the pregnancy if this is necessary for the health of the mother or unborn child; and the entire period of breastfeeding. These periods could be extended for single parents and parents of children with severe disabilities.

Employment rights

The Commission proposed that workers on maternity leave should be able to return to their jobs or to equivalent posts on terms and conditions that are no less favourable to them, and to benefit from any improvement in working conditions to which they would have been entitled during their absence. The Parliament adds that returning workers should have the same pay, professional category and duties as they enjoyed prior to the maternity leave. It also proposes the following additional guarantees:

• workers on maternity leave would receive automatically any pay increase, where applicable, without temporarily having to terminate their maternity leave so as to benefit from the increase;
   

   

  Workers would not suffer any reduction of pension rights through taking maternity leave.

   
• in exceptional situations relating to restructuring or a substantial reorganisation of the production process, returning workers would be entitled to discuss with their employer the impact of such changes on their work situation and, indirectly, personal situation;
• a period of maternity leave could not be prejudicial to the worker's pension rights and would be counted as a period of employment for pension purposes, and workers would not suffer any reduction of pension rights through taking maternity leave; and
• pregnant workers and those who have recently given birth or breastfeeding would maintain their opportunities for career development through education, along with ongoing professional and additional training with a view to consolidating their career prospects.

The Parliament concurs with the Commission that women returning from maternity leave should have a right to request changes to their working hours and patterns. It adds that member states should be encouraged to allow them to choose to work part time for up to one year, with full protection from dismissal and full rights to recover their full-time position and pay at the end of this period. Member states would also be obliged to encourage employers to provide for reintegration and training support for workers returning to work after maternity leave, where necessary and/or where requested by the worker, and to promote dialogue between the social partners on this issue.

Other issues

The Parliament agrees with the Commission that protection against dismissal during the pregnancy/maternity period would be extended to include "all preparations for a dismissal". It adds that the protection should extend for six months after the end of maternity leave. Further, the same protection should be extended to workers taking paternity or "co-maternity" leave.

Where an employer excludes a pregnant worker from work, because it considers her not fit for work, but the worker has not supplied any medical evidence of such unfitness, the Commission proposed that the worker should receive full pay until the beginning of maternity leave. The Parliament proposes that in such cases the worker should be able to consult a doctor. If the doctor certifies her as fit to work, the employer would have to allow her to return to work, or pay her full wages until the start of maternity leave.

The version of the Directive proposed by the Parliament includes a wide range of other changes to the current version. Notably, the text:

• states that the Directive applies to workers employed under any type of contract, including in domestic work;
• includes reproductive risks for male and female workers in the risk assessment that employers must conduct, and includes workers likely to become pregnant in the assessment;
• stipulates that pregnant women must not be required to perform tasks such as carrying and lifting heavy weights, or tasks that are dangerous or exhausting or pose health risks;
• requires employers to ensure that the working time of pregnant workers takes account of the need for regular and extraordinary medical check-ups; and
• promotes greater involvement, consultation and participation for workers and their representatives in the areas dealt with by the Directive.

Further, the amended Directive would oblige member states to:

• prohibit discrimination against pregnant women in the labour market by creating equal opportunities for them with regard to recruitment, should they meet all the requirements for the position concerned;
• encourage employers, through collective agreements or practice, to take effective measures to prevent discrimination against women on the grounds of pregnancy, maternity or adoption leave;
• take adequate measures to promote dialogue between the social partners at appropriate levels with a view to putting in place effective measures to prevent discrimination against women on the grounds of pregnancy, maternity or adoption leave;
• adopt suitable measures for the recognition of postnatal depression as a serious illness, and support awareness campaigns aimed at disseminating accurate information on the illness and "correcting the prejudices and possible stigmatisation which it can still attract";
• ensure the health and safety of pregnant workers, with regard to ergonomic conditions, working time (including night work and changes of job), work intensity, and increased protection against specific infectious agents and ionising radiation; and
• encourage employers to set up childcare facilities for employees who have children under the age of three.

Next steps

Under the EU legislative procedure, the draft Directive now passes to the Council of the EU. If the Council approves all the amendments made by the Parliament at first-reading stage, the Directive is adopted. This is highly unlikely to occur. Preliminary Council discussions in 2009 indicated a degree of consensus over the broad outline of the Commission's proposal, but with a number of national governments having reservations over issues such as extending minimum maternity leave entitlement to 18 weeks. The Parliament has now gone far beyond the Commission proposal, both strengthening the amendments suggested by the Commission (eg increasing minimum maternity leave from 18 to 20 weeks) and adding entirely new provisions (such as paternity leave and adoption leave), while extending the Directive's aims outside its original health and safety rationale. A number of Governments, including the UK, have already voiced opposition to the ambitious draft proposed by the Parliament.

If, as expected, the Council does not approve all the Parliament's amendments, governments must agree among themselves a common position. This then returns to the Parliament for a second reading. If the Parliament approves the common position, the Directive is adopted. If not, the Parliament proposes amendments to the position, which then goes back to the Council for a second reading. The Council may agree these amendments, in which case the Directive is adopted. If it does not agree, the proposal enters a Council-Parliament conciliation procedure.

The signs at this stage are that attempts to reach agreement on the Directive amending the Pregnant Workers Directive will prove difficult and protracted, with eventual conciliation a strong possibility. During the process, the Commission will seek act as an "honest broker" in reconciling he positions of the Parliament and Council.

This article was written by Mark Carley, European editor.

European employment policy, practice and law, November 2010