This blog post follows another on current Covid-19 measures and challenges for employers across Europe.
Employers should also be aware that the recent increase in Covid-19 cases poses a significant risk to vulnerable groups and in particular pregnant employees. We explore below the approach taken by governments and employers in some jurisdictions. The common denominator is that the employer has a duty to carry out a risk assessment according to specific rules set out in local laws and regulations and to take measures to prevent any risk. When this is not possible, the employment of the pregnant employee may be suspended, applying different types of leave, depending on the jurisdiction.
The employers of UK have additional legal obligations to protect the health and safety of pregnant employees, including assessing the risks posed in the workplace, modifying the working conditions (or hours) of the pregnant employee to avoid any significant risk, or offering appropriate alternative work on terms that are not substantially less than favorable. If (assuming there is a significant risk identified) suitable alternative work is not available and an adjustment of working conditions such as working from home is not possible, the pregnant employee should be suspended with full pay.
Before April this year, the UK Health and Safety Executive had put in place advice for pregnant employees specifically in relation to the risks of Covid-19. Following the release of the UK Health Safety Agency’s guidance on respiratory infections (for more details see our previous blog post), the Covid-19 advice for pregnant employees has been withdrawn. Since April 1, employers are no longer required to explicitly take Covid-19 into account in their risk assessments.
It is therefore possible that UK employers could reasonably determine that, in the current Covid-19 climate, the workplace is safe enough to require pregnant employees to return to the office, provided their individual risk assessments do not show opposite. However, there are always possible risks if employers unreasonably insist that pregnant employees return to the office. These include the risks of discrimination and, if employers take disciplinary action for a refusal to return to the office due to health and safety concerns, claims for automatic unfair dismissal (for having suffered harm and/or being fired for raising health and safety concerns). Therefore, employers must continue to be aware of their legal obligations when dealing with individuals with particular protected characteristics.
In Austria, Germany and Italy, whether or not Covid-19 measures are still in effect, special rules of local maternity protection laws apply to pregnant employees. The employer is required to assess the risks associated with pregnancy in the workplace of a pregnant employee (including risks due to Covid-19 infection) and to design working conditions in such a way as to avoid as many the risks to a pregnant employee as possible. In Germany, where this is not possible, the employer should take protective measures (including the redesign or reorganization of working conditions, a transfer to another appropriate and reasonable workplace or – as a last option – the employment ban). Whereas Austria, when no other option is possible, the pregnant employee must be released from work with continued pay (“special leave”). The provisions relating to the right to special leave related to Covid-19 expired on June 30, 2022. Currently, they only apply to women who became pregnant before June 30. However, they may be extended due to the ongoing pandemic. In Italyif none of the above measures are feasible (including remote work), pregnant employees have the right to take early maternity leave during their pregnancy.
The decision on protective measures is usually taken by the employer and the occupational physician or an occupational safety expert. In Germany, many experts believe that the occupational risk for pregnant employees is often too high and that they should work from home whenever possible. It is important to note that when assessing the risk situation, according to the well-defined criteria in the Maternity Protection Act, the individual circumstances must also be taken into account (for example, open space or individual office , work from home, ventilation, personal contact required at work and more).
In order to avoid liability risks, employers of Germany often issue a partial or full employment ban for those who cannot work from home. Yet many pregnant employees insist on their right to come to the contractually agreed workplace. This may lead to disputes in court as to whether other protective measures could be taken to satisfy this request. An option already excluded, according to the recommendations of the federal states, is the wearing of the FFP2 mask. Such well-fitting respirators can only be used to a limited extent for pregnant women. In addition, the Maternity Protection Act prohibits activities in which pregnant women must wear protective equipment (including FFP2 and comparable masks) that cause physical stress.
In France, pregnant women in their third trimester who perform work in which they could be exposed to a high viral density and who cannot work from home or be effectively protected against exposure to Covid-19, are considered vulnerable persons. As such, after having received a certificate of isolation from their doctor, they can be placed in partial activity.