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Austria - Maternity protection - 2011


LAST UPDATE

24 November 2011.

SOURCES


Name of Act

Child Care Benefit Act,
Kinderbetreuungsgeldgesetz 2001, BGBl I 103/2001 as amended to 2007.

Name of Act

Maternity Protection Act,
Mutterschutzgesetz 1979, as amended to 2007.

Name of Act

Parental Leave for Fathers Act,
Väter-Karenzgesetz 1989, as amended to 2007.

Name of Act

General Social Insurance Act,
Allgemeines Sozialversicherungsgesetz 1955, as amended to 2009.

Name of Act

Equal Treatment Act,
Gleichbehandlungsgesetz 1993, as amended to 2008.

MATERNITY LEAVE


Scope

This Federal Act shall apply to female:
1. employees/workers
2. homeworkers.

This Federal Act shall not apply to female:
1. employees whose employment relationship is governed by the Agricultural Labour Act (Landarbeitsgesetz, LAG) 1984, Federal Law Gazette no. 287;
2. employees who have an employment relationship with an Austrian state (Land), a municipality (Gemeinde) or a local authorities association (Gemeindverband), unless they work in businesses.

Notwithstanding para. 2 n.2, this Federal Act shall apply to female employees whose civil-service employment relationship has to be specified by the Federal Government pursuant to Art. 14 para. 2 or Art. 14a para. 3 lit. b of the Austrian Federal Constitutional Law (Bundes-Verfassungsgesetz, B-VG).

The regulations for employees stipulated in this Federal Act shall also apply to female apprentices; the regulations stipulated for employers shall also apply to clients as defined in the Homeworking Act (Heimarbeitsgesetz, HAG) 1960, Federal Law Gazette no. 105/1961.

Chapters 2 to 7 of this Federal ACt shall apply to:
1. employees who are employed in the framework of one of the employment relationships listed in Section 18, with the deviations stated in Chapter 8;
2. employees working in private households, with the deviations stated in Chapter 9;
3. homeworkers, with the deviations stated in Chapter 10.
Maternity Protection Act Chapter 1

Qualifying conditions

Pregnant employees shall notify their employers of their pregnancy, as soon as they have learned about it, and shall at the same time specify the presumed date of confinement. Moreover, they shall be obliged to notify the employer of the commencement of the eight-week period (Para. 1) in the fourth week prior to it. At the employer’s request, pregnant employees shall produce a medical certificate confirming the pregnancy and specifying the presumed date of confinement. The employer shall be informed about a premature termination of the pregnancy.
Maternity Protection Act §3(4)

Duration


Compulsory leave

Pregnant women must not work during the last eight weeks immediately prior to the presumed date of confinement (eight-week period).

Employees must not be employed during a period of eight weeks following childbirth. In the case of premature births, multiple births or Caesarian section births, this period shall be at least twelve weeks. If the portion of the eight-week period (Section 3 Para. 1) prior to childbirth was shorter, the missing time shall be added to the maternity leave period (Schutzfrist) after childbirth, which must, however, not exceed 16 weeks.
Employees must not perform work listed under Section 4 Para. 2 nos. 1, 2, 3, 4, 8, 9, 12 and 13 during a period of twelve weeks after childbirth.
Maternity Protection Act §3(1), 5(1)(3)
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General total duration

Pregnant women must not work during the last eight weeks immediately prior to the presumed date of confinement (eight-week period).
The eight-week period (Para. 1) has to be calculated on the basis of a medical certificate. When the date of confinement occurs earlier or later than stated in the certificate, the period shall be shortened or extended accordingly.

Employees must not work during a period of eight weeks following childbirth. In the case of premature births, multiple births or Caesarian section births, this period shall be at least twelve weeks. If the portion of the eight-week period (Section 3 Para. 1) prior to childbirth was shorter, the missing time shall be added to the maternity leave period (Schutzfrist) after childbirth, which must, however, not exceed 16 weeks.
Maternity Protection Act §3(1)(2), 5(1)
Historical data (year indicates year of data collection)
  • 2009: 16 weeks (8 weeks prenatal and 8 weeks postnatal). The 8-week prenatal leave period will be calculated on the basis of a doctor’s declaration.
  • 2004: Sixteen weeks
  • 1998: Sixteen weeks
  • 1994: Sixteen weeks

Extension

The eight-week period (Para. 1) has to be calculated on the basis of a medical certificate. When the date of confinement occurs earlier or later than stated in the certificate, the period shall be shortened or extended accordingly.
Employees must not work during a period of eight weeks following childbirth. In the case of premature births, multiple births or Caesarian section births, this period shall be at least twelve weeks. If the portion of the eight-week period (Section 3 Para. 1) prior to childbirth was shorter, the missing time shall be added to the maternity leave period (Schutzfrist) after childbirth, which must, however, not exceed 16 weeks.
Maternity Protection Act §3(2), 5(1)

Leave in case of illness or complications

Outside the 8-week prenatal leave period, a pregnant woman may not be made to work if she provides a statement from a Labour Inspectorate doctor or a medical officer that the life or health of herself or her child would be endangered if she continued to work.
In addition to the 8-week postnatal leave period, female workers will not be allowed to return to work after their delivery as long as they are not fit for work. The female worker is obliged to inform her employer of her unfitness to work without delay, providing a statement from a doctor about the expected duration of her unfitness; otherwise, she will not receive wages during her absence from work.
Maternity Protection Act §3(2), 5(1)

RELATED TYPES OF LEAVE


Parental leave


Scope

Unless hereinafter specified otherwise, the employee shall, at his request, be granted parental leave until the child�s second birthday without remuneration, if he lives in the same household with the child; simultaneous parental leave of the two parents shall not be admissible, except for the case specified in Section 3 Para. 2.

Unless hereinafter specified otherwise, the employee shall, at her request, be granted parental leave subsequent to the period set out under Section 5 Paras. 1 and 2 until the child�s second birthday without remuneration, if she lives in the same household with the child. The same shall apply, if the employee took paid annual leave subsequent to the period set out under Section 5 Paras. 1 and 2 or if she was not able to work due to illness or an accident.
Parental Leave for Fathers Act §2(1)
Maternity Protection Act §15(1)

Qualifying conditions

The employee shall notify the employer of the beginning and duration of parental leave by the end of the period set out under Section 5 Para. 1 at the latest. The employee may notify her employer no later than three months, or if the parental leave period is shorter than three months, no later than two months prior to the end of her parental leave that and until when she will extend parental leave. Notwithstanding the expiry of these notification periods, parental leave pursuant to Para. 1 may be agreed.

If the employee takes parental leave as of the earliest possible date (Paras. 2 or 3), he shall notify his employer of the beginning and the duration of parental leave eight weeks after the child�s birth at the latest. The employee may notify his employer no later than three months, or if the parental leave period is shorter than three months, no later than two months prior to the end of his parental leave that and until when he will extend parental leave. Notwithstanding the expiry of these notification periods, parental leave pursuant to Para. 1 may be agreed.
Maternity Protection Act §15(3)
Parental Leave for Fathers Act §2(5)

Length

Unless hereinafter specified otherwise, the employee shall, at his request, be granted parental leave until the child�s second birthday without remuneration, if he lives in the same household with the child; simultaneous parental leave of the two parents shall not be admissible, except for the case specified in Section 3 Para. 2.

Parental leave pursuant to Para. 2 may be split two times and taken alternately with the child�s mother. Each share of parental leave must be at least two months and shall begin at the point of time specified in Sections 2 Para. 2 or 3 or immediately subsequent to a parental leave period taken by the mother.
On the occasion of the first change in the person caring for the child, the employee may take parental leave at the same time as the mother for a period of one month, with the entitlement to parental leave ending one month prior to the point of time stipulated under Section 2 Para. 1 or Section 4 Para. 1 third sentence.

The employee may agree with the employer that he postpones three months of his parental leave and takes it before the child�s seventh birthday, unless hereinafter specified otherwise. In this context, the requirements of the business and the reason for taking parental leave shall be taken into account. However, postponed parental leave may only be taken if the parental leave pursuant to Section 2 or 3 has ended at the end of the child�s 21st month of age at the latest, if the child�s mother also takes postponed parental leave, at the end of the child�s 18th month of age.

Unless hereinafter specified otherwise, the employee shall, at her request, be granted parental leave subsequent to the period set out under Section 5 Paras. 1 and 2 until the child�s second birthday without remuneration, if she lives in the same household with the child. The same shall apply, if the employee took paid annual leave subsequent to the period set out under Section 5 Paras. 1 and 2 or if she was not able to work due to illness or an accident.

Parental leave may be shared with the child�s father and split two times. Each share of the employee�s parental leave must amount to at least two months. It has to be taken up at the point of time specified in Section 15 Para. 1 or immediately subsequent to the parental leave taken by the father.

The employee may agree with the employer that she postpones three months of her parental leave and takes it before the child�s seventh birthday, unless hereinafter specified otherwise. In this context, the requirements of the business and the reason for taking parental leave shall be taken into account. However, postponed parental leave may only be taken if the parental leave pursuant to Sections 15 or 15a has ended
1. at the end of the child�s 21st month of age,
2. if the father also takes postponed parental leave, at the end of the child�s 18th month of age at the latest.
Parental Leave for Fathers Act §2(1), 3(1)(2), 4(1)
Maternity Protection Act §15(1), 15a(1), 15b(1)

Paternity leave

No relevant provisions identified.

Adoption leave


Scope

Any employee who
1. has adopted � on her own or with her husband � a child under the age of two (adoptive mother) or
2. provides unpaid foster care to a child under the age of two with the intention to adopt the child (foster mother) and who lives with the child in the same household shall be entitled to parental leave.

Unless hereinafter specified otherwise, an employee shall also be entitled to parental leave under the conditions and circumstances set out under Sections 2, 3 and 4, if he
1. has adopted � on his own or with his wife � a child under the age of two (adoptive father);
2. provides unpaid foster care to a child under the age of two with the intention to adopt the child (foster father).
Maternity Protection Act §15c(1)
Parental Leave for Fathers Act §5(1)

Qualifying conditions

The employee shall notify the employer of the beginning and duration of parental leave by the end of the period set out under Section 5 Para. 1 at the latest. The employee may notify her employer no later than three months, or if the parental leave period is shorter than three months, no later than two months prior to the end of her parental leave that and until when she will extend parental leave. Notwithstanding the expiry of these notification periods, parental leave pursuant to Para. 1 may be agreed.

Sections 15 to 15b shall apply with the following deviations:
if the employee takes parental leave pursuant to Sections 15 and 15a immediately from the date of adoption or the placement in unpaid foster care, she shall immediately notify her employer of the beginning and duration of parental leave

If the employee takes parental leave as of the earliest possible date, he shall notify his employer without delay about the beginning and the duration of parental leave pursuant to Section 2 or 3. Notwithstanding the expiry of this notification period, parental leave pursuant to Section 2 or 3 may be agreed.
Maternity Protection Act §15(3), 15c(2)2)
Parental Leave for Fathers Act §5(3)

Length

Unless hereinafter specified otherwise, the employee shall, at her request, be granted parental leave subsequent to the period set out under Section 5 Paras. 1 and 2 until the child�s second birthday without remuneration, if she lives in the same household with the child. The same shall apply, if the employee took paid annual leave subsequent to the period set out under Section 5 Paras. 1 and 2 or if she was not able to work due to illness or an accident.
The duration of parental leave must be at least two months.

Unless hereinafter specified otherwise, an employee shall also be entitled to parental leave under the conditions and circumstances set out under Sections 2, 3 and 4, if he
1. has adopted � on his own or with his wife � a child under the age of two (adoptive father).
If an employee adopts a child that is older than 18 months but younger than two years or if he provides unpaid foster care to such child with the intention to adopt it, he may take parental leave for a period of up to six months after the child�s second birthday.
If the employee adopts a child after its second birthday but before its seventh birthday or if he provides unpaid foster care to such child with the intention to adopt it, he shall be entitled to parental leave for a period of six months on the occasion of adoption or the placement in unpaid foster care. In other respects, Sections 2 and 3 shall apply.
Maternity Protection Act §15(1)(2)
Parental Leave for Fathers Act §5(1)(4)(5)
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RIGHT TO PART-TIME WORK


General provisions

The employee shall be entitled to part-time employment up to the child�s seventh birthday at the latest or any later date of the child�s entry into school, provided that
1. the employee has maintained the employment relationship for an uninterrupted period of three years at the time of taking up part-time employment and
2. the employee has worked in a business (Section 34 of the Labour Constitution Act (Arbeitsverfassungsgesetz, ArbVG), Federal Law Gazette no. 22/1974) with more than 20 employees at that time.
The beginning and duration of the part-time employment as well as the number and scheduling of the working hours shall be agreed upon with the employer, taking into account the interests of the business and the interests of the employee. Employees shall not be entitled to part-time employment during an apprenticeship.

An employee who has no right to part-time employment pursuant to Section 15h Para. 1 or 4 may enter into an agreement on part-time employment with the employer up to the child�s fourth birthday at the latest specifying its beginning and duration as well as the number and scheduling of the working hours.

Sections 15h to 15o shall also apply to any intended change in the scheduling of working hours, provided that the number of working hours is left out of consideration.

An employee who has no right to part-time employment pursuant to Section 8 Para. 1 or 4 may enter into an agreement on part-time employment with the employer up to the child�s fourth birthday at the latest specifying its beginning and duration as well as the number and scheduling of the working hours.

Sections 8 to 8g shall also apply to any change in the scheduling of working hours intended by the employee, provided that the number of working hours is left out of consideration.
Maternity Protection Act §15h(1), 15i, 15p
Parental Leave for Fathers Act §§8(1), 8a, 8h

Length

The employee shall be entitled to part-time employment up to the child�s seventh birthday at the latest or any later date of the child�s entry into school, provided that
1. the employee has maintained the employment relationship for an uninterrupted period of three years at the time of taking up part-time employment and
2. the employee has worked in a business (Section 34 of the Labour Constitution Act (Arbeitsverfassungsgesetz, ArbVG), Federal Law Gazette no. 22/1974) with more than 20 employees at that time.
The beginning and duration of the part-time employment as well as the number and scheduling of the working hours shall be agreed upon with the employer, taking into account the interests of the business and the interests of the employee. Employees shall not be entitled to part-time employment during an apprenticeship.

The employee can be granted part-time employment only once for each child. The duration of such part-time employment must be at least two months.
Maternity Protection Act §15h(1), 15j(2)
Parental Leave for Fathers Act §8b(2)
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Change of part-time work arrangement

The employee may request both a change in the part-time employment (extension, change to the number of hours or scheduling) and a premature termination only once. She shall notify her employer of this in writing no later than three months, or if the part-time employment is shorter than three months, no later than two months prior to the intended change or termination.
The employer may request both a change in the part-time employment (change to the number of hours or scheduling) and a premature termination only once. The employer shall notify the employee of this in writing no later than three months, or if the part-time employment is shorter than three months, no later than two months prior to the intended change or termination.
Maternity Protection Act §15j(5)(6)
Parental Leave for Fathers Act §8b(5)(6)
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CASH BENEFITS


Maternity leave benefits


Scope

All those insured under the General Health Insurance Act may qualify for daily maternity benefits; exceptions exist.
General Social Insurance Act §162(1)(5)

Duration

Daily maternity benefit (Wochengeld) is paid during compulsory leave (in general 16 weeks altogehter - 8 weeks before and after delivery; 24 weeks after multiple or cesarean birth) and for any period where a women’ work is prohibited on the grounds of the provisions of maternity protection.
General Social Insurance Act §162 (1)(3)
Maternity Protection Act §14(4)

Amount

100 % of the average daily wage earned over the last 13 weeks (or 3 months) before the start of the maternity leave, minus the statutory deductions. Detailed regulations on the calculation of the amount of benefits exist.
The female worker remains entitled to other payments, especially one-off ones.
General Social Insurance Act §162 (1)(3)
Maternity Protection Act §14(4)
Historical data (year indicates year of data collection)
  • 2004: One hundred percent
  • 1998: One hundred percent
  • 1994: One hundred percent

Financing of benefits

Statutory Health Insurance
General Social Insurance Act §§2, 116 (1), 162
Historical data (year indicates year of data collection)
  • 2009: Statutory Health Insurance
  • 2004: Social security
  • 1998: Social security
  • 1994: Social security

Parental leave benefits


Qualifying conditions

Unless hereinafter specified otherwise, the employee shall, at her request, be granted parental leave subsequent to the period set out under Section 5 Paras. 1 and 2 until the child�s second birthday without remuneration, if she lives in the same household with the child. The same shall apply, if the employee took paid annual leave subsequent to the period set out under Section 5 Paras. 1 and 2 or if she was not able to work due to illness or an accident.

Unless hereinafter specified otherwise, the employee shall, at his request, be granted parental leave until the child�s second birthday without remuneration, if he lives in the same household with the child; simultaneous parental leave of the two parents shall not be admissible, except for the case specified in Section 3 Para. 2.

A child care benefit (Kinderbetreuungsgeld) is in general available to a mother or a father who shares a household with a child and whose personal income does not exceed 16.200 per year.
Father and mother may not receive child care benefit at the same time; child care benefits may not be paid while the mother receives maternity leave benefits.
Maternity Protection Act §15(1)
Parental Leave for Fathers Act §2(1)
Child Care Benefit Act §2(1)

Duration

The right to child care benefit exists at most from the birth of the child onwards until the child is 36 months old and amounts to 14,53 € per day. A supplement of 6,06 € per day is available in certain cases.
The right to child care benefit may be changed twice between the parents; every period of child care benefit payment has to last at least 3 months.
Child Care Benefit Act §§4, 5(1), 9, 10
Child Care Benefit Act §5(3)

Financing of benefits

Statutory Health Insurance.
Child Care Benefit Act §24(1)

Paternity leave benefits

No relevant provisions identified.

Adoption leave benefits


Scope

Unpaid leave.
Child care benefit is paid to adoptive/foster parents under the same conditions as for biological parents (see parental leave benefits). It is due at the earliest from the day of adoption/fostering onwards.
Maternity Protection Act §§15(1), 15c(1)(2)
Parental Leave for Fathers Act §§2(1),5(1)
Child Care Benefit Act §4(1)

Duration

For the duration of child care benefit see parental leave benefits.

Amount

For the duration of child care benefit see parental leave benefits.

Financing of benefits

For the duration of child care benefit see parental leave benefits.

MEDICAL BENEFITS


Pre-natal, childbirth and post-natal care

Maternity insurance comprises the period ranging from the beginning of the pregnancy to the delivery and any consequences of that delivery, as long as these consequences cannot be considered to fall under the sickness insurance or under an inability to work due to sickness.
Assistance by a doctor, a midwife or a qualified pediatric or infant nurse as well as medication and other aids to the degree stipulated in the General Social Insurance Act will be covered.
In relation to the delivery, care in a hospital (or maternity clinic) is covered for a maximum of 10 days. If the condition of the mother or the distance to her home necessitates this, the costs of transport to and from the care facility will also be covered.
General Social Insurance Act §157, 159, 161

Financing of benefits

Statutory health insurance.
General Social Insurance Act §157

BREASTFEEDING


Right to nursing breaks or daily reduction of hours of work

When returning to work, employees who are breastfeeding have to inform the employer that they are breastfeeding and have to produce a corresponding certificate issued by a physician or a parent-child centre (Mutterberatungsstelle) at the employer�s request.

Upon request, employees who are breastfeeding shall be given the required time off to breastfeed their infants. This shall be 45 minutes on days when the employee works for more than four and a half hours; if the employee works for eight or more hours, the time off for breastfeeding shall be split into two breaks of 45 minutes each upon request or, if there is no breastfeeding facility in the vicinity of the place of work, a period of ninety minutes shall be granted for breastfeeding. The competent administrative authority pursuant to Section 36 may instruct the employer to split the time off for breastfeeding in a certain way in accordance with Paras. 1 and 2, if special circumstances demand so in individual cases.
Maternity Protection Act §4a(1), 9(1)(3)

Remuneration of nursing breaks

The time off for breastfeeding must be granted without loss of pay. The time off for breastfeeding must neither be made up for by the employees who are breastfeeding nor must it be deducted from the other rest periods defined by law or collective agreement.
Maternity Protection Act §9(2)

Transfer to another post

No relevant provisions identified.

Nursing facilities

Pregnant employees and breastfeeding employees employed on the employer�s premises and on construction sites must be able to lie down to rest in appropriate conditions.
Furthermore, the competent administrative authority pursuant to Section 36 may order that breastfeeding facilities be established, if the circumstances demand so in individual cases.
Maternity Protection Act §8a, 9(4)

HEALTH PROTECTION


Arrangement of working time


Night work

Apart from the exemptions permitted pursuant to Paras. 2 and 3, pregnant employees and employees who are breastfeeding must not work between 8 p.m. and 6 a.m.
Pregnant employees and breastfeeding employees who work in transportation, for music performances, theatre performances, public shows, amusements, festivities, film recordings and in cinemas or who work as nurses in hospitals, convalescent and nursing homes or welfare institutions or in multiple-shift businesses may work until 10 p.m. provided that they are granted an uninterrupted rest period of at least eleven hours after night work.
At the employer�s request, the Labour Inspectorate may, in individual cases, grant permission to employ pregnant employees and employees who are breastfeeding in the hotel and restaurant industry until 10 p.m. and in music performances, theatre performances, public shows, amusements, festivities and in cinemas until 11 p.m., if this is necessary for operational reasons and provided that the employee�s health allows for it. This permission may only be given if the employee is guaranteed and granted an uninterrupted rest period of at least eleven hours after night work.
The exemptions pursuant to Paras. 2 and 3 shall only apply if night work for female employees is not prohibited for other reasons.
Maternity Protection Act §6

Overtime

Pregnant employees and employees who are breastfeeding must not work longer than the regular daily working hours as defined in a collective agreement or as stipulated by law. The daily working hours must in no case exceed nine hours, the weekly working hours in no case 40 hours.
Maternity Protection Act §8

Work on rest days

Apart from the exemptions permitted pursuant to Paras. 2 and 3, pregnant employees and employees who are breastfeeding must not work on Sundays and public holidays.
The prohibition pursuant to Para. 1 shall not apply to:
1. employment in music performances, theatre performances, public shows, amusements, festivities, film recordings, in the hotel and restaurant industry and in businesses with uninterrupted rotating shifts, within the scope of the otherwise permissible work on Sundays and public holidays;
2. employment in businesses where work on Sundays and public holidays is permitted, provided that the weekly rest period for the entire staff falls on a certain working day;
3. employment in businesses where work on Sundays and public holidays is permitted, if the business does not regularly employ more than five employees and if - apart from the pregnant employee or the employee who is breastfeeding � only one employee is employed who can perform a job of the same kind.
At the employer�s request, the Labour Inspectorate may approve of additional exemptions in individual cases, if this is essential for operational reasons.
The employee shall be entitled to an uninterrupted rest period of at least 36 hours (weekly rest) in the calendar week following work on Sunday, and to an uninterrupted rest period of at least 24 hours after a night rest in the week following work on a public holiday. The rest period shall include a whole weekday. During this rest period the employee must not work.
The exemptions pursuant to Paras. 2 and 3 shall only apply if work on Sundays and public holidays for female employees is not prohibited for other reasons.
Maternity Protection Act §7

Time off for medical examinations

If the pregnant employee is prevented from work due to necessary pregnancy-related ante-natal examinations, in particular those covered by the Mother-Child-Booklet Ordinance (Mutter-Kind-Pass-Verordnung, MuKiPassV), Federal Law Gazette II no. 470/2001, which she cannot attend or cannot reasonably be expected to attend outside the working hours, she shall be entitled to continued remuneration.
Maternity Protection Act 3(8)

Leave in case of sickness of the child

No relevant provisions identified.

Dangerous or unhealthy work


General

Under no circumstances must pregnant employees perform heavy physical work or any work or working processes which are harmful to their organism or that of the unborn child due to the kind of the work process or the agents or work equipment used.
Maternity Protection Act §4(1)

Risk assessment


» Assessment of workplace risks

When employing female employees, the employer has to go beyond the duties stipulated in the Workers Protection Act (ArbeitnehmerInnenschutzgesetz; ASchG), Federal Law Gazette no. 450/1994, and determine and assess the risks to the safety and health of pregnant employees and employees who are breastfeeding related to women�s workplaces and the effect of these risks on the pregnancy and breastfeeding.
Maternity Protection Act §2a(1)

» Adaptation of conditions of work

When identifying and assessing the risks and specifying the measures to be taken, occupational health and safety officers as well as occupational physicians have to be consulted, if necessary. They may also be commissioned to identify and assess the risks.

If the assessment shows any risks to the safety and health of pregnant employees or employees who are breastfeeding or any possible adverse effect on the pregnancy or breastfeeding, the employer has to eliminate these risks and the effects by adjusting the working conditions.
Maternity Protection Act §2a(4), 2b(1)

» Transfer to another post

If the adjustment of the working conditions is not objectively feasible, or cannot be required from the employer or employee, the employee shall be employed in a different job. If no suitable job exists, the employee shall be released from work.
Maternity Protection Act §2b(2)

» Paid/unpaid leave

If no suitable alternative post is available, the female worker will be exempted from working, while remaining entitled to a wage that equals her average earnings over the preceding 13 weeks.

If changing the employee�s job in the business is necessary pursuant to Section 2b, Section 4, Section 4a, Section 5 Paras. 3 and 4 or Section 6, unless defined otherwise in Section 10a Para. 3, the employee shall be entitled to payment of the remuneration that equals the average earnings she received in the last 13 weeks of the employment relationship prior to this change. If said period covers times where the employee was not paid the full remuneration due to illness or because of temporarily reduced working hours (Kurzarbeit), the 13-week period shall be extended by these periods; these periods shall not be considered when calculating the average earnings. The aforementioned provision shall also apply if the change in the employee�s job entails shorter working hours, subject to the proviso that the calculation of the remuneration shall be based on the working hours which would apply to the employee had there not been any change in the job. In the case of a type of seasonal work referred to in Section 4 Para. 2 no. 9, the employee shall be granted the average income of the last thirteen weeks only for that period during which such work is performed in the business; for the remaining time, the employee shall be granted the remuneration she would have received if she were not pregnant. Employees who must not be employed pursuant to Section 3 Para. 3 as well as employees for whom no employment opportunities exist in the business on the basis of the provisions of Section 2b, Section 4, Section 4a, Section 5 Paras. 3 and 4 or Section 6 shall be entitled to remuneration, for the calculation of which Para. 1 shall apply correspondingly.
Maternity Protection Act §2b(2), 14(1)(2)

» Right to return

No relevant provisions identified.

Particular risks


» Arduous work (manual lifting, carrying, pushing or pulling of loads)

Under no circumstances must pregnant employees perform heavy physical work or any work or working processes which are harmful to their organism or that of the unborn child due to the kind of the work process or the agents or work equipment used.
Work as defined in Para. 1 shall in particular include:
1. work entailing the regular manual lifting of loads with a weight of more than 5 kg or the occasional lifting of loads with a weight of more than 10 kg without any mechanical tools or the regular manual handling or moving of loads with a weight of more than 8 kg or the occasional manual handling or moving of loads with a weight of more than 15 kg without any mechanical tools; if bigger loads are lifted, handled or moved with the help of mechanical tools, the physical burdens must not be higher than in the case of the aforementioned activities

In cases of doubt, the Labour Inspectorate will determine whether a job falls under the prohibitions established for pregnant / nursing women.

Employees who are breastfeeding must in no case perform work or work processes pursuant to Section 4 Para. 2 nos. 1, 3, 4, 9, 12 and 13. In case of doubt, the Labour Inspectorate shall decide whether a job is subject to prohibition as defined in Para. 2.

Employees must not perform work listed under Section 4 Para. 2 nos. 1, 2, 3, 4, 8, 9, 12 and 13 during a period of twelve weeks after childbirth.
Maternity Protection Act §4(1)(2)1)(4), 4a(2)(3), 5(3)

» Work involving exposure to biological, chemical or physical agents

Under no circumstances must pregnant employees perform heavy physical work or any work or working processes which are harmful to their organism or that of the unborn child due to the kind of the work process or the agents or work equipment used.
Work as defined in Para. 1 shall in particular include:
3. work entailing the risk of an occupational disease as defined in the relevant provisions of the General Social Insurance Act (Allgemeines Sozialversicherungsgesetz, ASVG), Federal Law Gazette no. 189/1955;
4. work where pregnant employees are exposed to the effects of harmful agents, no matter whether they are in a solid, fluid, dusty, gaseous or vaporous state, harmful radiation or the harmful effects of heat, cold or humidity, where damage cannot be ruled out;
11. work with biological agents as defined in Section 40 Para. 4 nos. 2 to 4 AschG, in so far as it is known that these agents or the therapeutic measures necessitated by such agents endanger the health of the pregnant woman and the unborn child;
13. work in a high-pressure atmosphere (air with a hyperbaric atmosphere of more than 0.1 bar), particularly pressurised enclosures and underwater diving.
Pregnant employees who do not smoke must not work in places where they are exposed to tobacco smoke, provided that this is feasible in the type of business. If no spatial separation is possible, the employer shall take appropriate measures to ensure that other employees working in the same room as the pregnant employee do not expose her to tobacco smoke.

Employees who are breastfeeding must in no case perform work or work processes pursuant to Section 4 Para. 2 nos. 1, 3, 4, 9, 12 and 13.
In case of doubt, the Labour Inspectorate shall decide whether a job is subject to prohibition as defined in Para. 2.


Pregnant and nursing women as well as women 12 weeks after delivery may under no circumstances be engaged in heavy physical work or in work that, by virtue of the work process or the substances used, is damaging to herself or her unborn child, especially work that exposes them to dangerous substances, whether in solid, fluid, dust or gas form, dangerous radiation.
Furthermore, pregnant women must not be exposed to biological substances insofar as it is known that these substances or the therapeutic measures necessary in case of damage caused by these substances will endanger the health of the pregnant woman or the unborn child.
Pregnant woman who do not smoke themselves may not be employed in workplaces where they are exposed to tobacco smoke.
Maternity Protection Act §4(2)3)4)11)13)(6), 4a(2)(3)

» Work involving physical strain (prolonged periods of sitting, standing, exposure to extreme temperatures, vibration)

Under no circumstances must pregnant employees perform heavy physical work or any work or working processes which are harmful to their organism or that of the unborn child due to the kind of the work process or the agents or work equipment used.
Work as defined in Para. 1 shall in particular include:
2. work performed by pregnant employees mainly in a standing position as well as work that entails corresponding static strain, unless there are seats for the employee to have a short rest; after the expiry of the 20th week of pregnancy all such work, if it is performed for more than four hours, even if there is a seat for the employee to have a short rest;
10. work which is performed by pregnant employees in a sitting position, unless they are given the opportunity of short breaks during their work;

Pregnant employees must not perform any work
1. where they often have to excessively stretch or bend or where they often have to crouch or maintain a bent position; and
2. where the body is exposed to excessive vibrations or
3. where the employee is exposed to especially annoying malodours or particular psychological stress,
if the Labour Inspectorate, at the employee¿s request or on the authorities¿ own initiative, decides that this work is harmful to the organism of the pregnant employee or to the unborn child, and if this is also confirmed by an expert opinion of a physician of the Labour Inspectorate or a medical health officer of the public health authorities in the case of Para. 3.

Employees who are breastfeeding must in no case perform work or work processes pursuant to Section 4 Para. 2 nos. 1, 3, 4, 9, 12 and 13.

Employees must not perform work listed under Section 4 Para. 2 nos. 1, 2, 3, 4, 8, 9, 12 and 13 during a period of twelve weeks after childbirth.
Maternity Protection Act §4(2)2)10)(5), 4a(2), 5(3)

NON-DISCRIMINATION AND EMPLOYMENT SECURITY


Anti-discrimination measures

No direct or indirect discrimination may occur in the employment relationship on the grounds of gender, especially with regard to marital or family status, especially when it concerns: 1) establishing the employment or training relationship; 2) setting wages; 3) granting voluntary social contributions that do not constitute wages; 4) training; 5) promotions; 6) other employment conditions; 7) terminating the employment or training relationship.
Equal Treatment Act §3

Prohibition of pregnancy testing

No relevant provisions identified.

Protection from discriminatory dismissal

Employees may not be given notice of termination in a legally effective way during pregnancy and until the end of a period of four months after childbirth, unless the employer has not been informed about the pregnancy or childbirth.
The termination shall also be legally ineffective if the employer is notified of the pregnancy or childbirth within five working days after the notice of termination was given, or, if the notice was given in writing, within five working days from its service. Written notification of the pregnancy or childbirth shall be deemed timely, if it is mailed within the five-day period. If the employee objects to the termination due to pregnancy or childbirth within the five-day period, she shall simultaneously provide proof of pregnancy or the presumed pregnancy by means of a physician¿s certificate or produce the child¿s birth certificate. If the employee cannot notify the employer of the pregnancy or childbirth during the period of five days for reasons outside her sphere of influence, the notification shall be deemed timely if it occurs immediately after the impediment to notification has disappeared.
Notwithstanding Paras. 1 and 2, the notice of termination can be given in a legally effective way, if prior consent of the court has been obtained. When filing the action, the employer shall at the same time notify the works council thereof. The court shall approve of the termination by the employer only if the employer cannot continue the employment relationship without causing damage to the business because of downsizing or closing down operations or closing down individual departments of the business, or if the employee agrees to the termination of employment during the court hearing, after the parties have been instructed by the presiding judge on the protection against termination of employment under this Federal Act. The court¿s consent to the termination is not required after a business has been closed down.
If parental leave is taken in the child¿s second year or ¿ in the case of part-time employment ¿ in the child¿s second, third and fourth year, the court may also consent to the termination, if the action seeking consent to the termination of employment was filed after the child¿s first birthday, provided that the employer furnishes evidence that the termination of employment is justified by circumstances caused by the employee that are detrimental to the interests of the business or caused by business requirements which are an obstacle to the continued employment of the employee, and if continuation of the employment is unacceptable to the employer.
If an employee was given notice due to closing down the business (Para. 3) and if this business resumes its activity within a period of four months after the employee¿s childbirth, the previous layoff shall have no legal effect if the employee lodges a corresponding request with the employer. Said request has to be submitted within two months after the business has resumed its activity. When lodging the request, the employee has to indicate to the employer her readiness to resume work. If, at the time of submission of the request, the employee is subject to a prohibition of employment pursuant to this Federal Act (Section 3 Paras. 1 to 3 and Section 5 Paras. 1 and 2) or if the employee has taken parental leave (Section 15), she shall notify the employer thereof upon submission of the request and resume work after she is no longer prohibited from working and/or parental leave has ended.
Any notice of termination given contrary to Paras. 1 to 4 shall not be legally effective.
Any termination of an employment relationship by mutual agreement shall only be legally effective, if it has been agreed upon in writing. If the employee is a minor, this agreement also has to be supplemented with a certification from a court (Section 92 of the Labour and Social Courts Act (Arbeits- und Sozialgerichtsgesetz, ASGG)) or a statutory interest group of employees, stating that the employee was instructed on the protection against notice of termination of employment under this Federal Act.

Employees may be dismissed in a legally effective way during pregnancy and until the end of a period of four months after childbirth only after the prior consent of the court has been obtained.
The court may grant its consent to the dismissal only if the employee
1. has culpably and negligently violated the duties incumbent on her on the basis of the employment relationship, in particular if she has failed to perform her work without legitimate cause during a period of time that is deemed considerable under the given circumstances;
2. has committed a breach of trust in the framework of her work or if she has unjustifiably received and accepted benefits in her job from third parties without her employer¿s knowledge;
3. has disclosed a business or trade secret or has operated, without the employer¿s consent, an ancillary business which is detrimental to her deployment in the business operation (household);
4. has been involved in violence against or substantial defamation of the employer, the members of the employer¿s family working or present in the business (household) or any employees of the business (household);
5. is guilty of committing an offence which can only be committed intentionally and is punishable by imprisonment for more than one year or has committed a punishable offence with the intent of enriching herself or somebody else.
In the cases set out in Para. 2 nos. 1 and 4, the employee¿s extraordinary emotional state caused by pregnancy or childbirth has to be taken into account.
In the cases set out in Para. 2 nos. 4 and 5, the employee may be dismissed if the court¿s consent is obtained subsequently. If the court dismisses the action seeking consent to the dismissal, the dismissal shall not have legal effect.

In the case of Para. 3, the protection against notice of termination of employment and dismissal pursuant to Sections 10 and 12 shall commence upon the notification but no sooner than four months prior to the beginning of this share of parental leave.
The protection against notice of termination of employment and dismissal pursuant to Sections 10 and 12 shall end four weeks after the end of her respective share of parental leave.

The protection against notice of termination of employment and dismissal pursuant to Sections 10 and 12 shall in principle commence upon notification, however, no sooner than four months prior to the intended start of the part-time employment. It shall apply until four weeks after the termination of part-time employment but up to four weeks after the child¿s fourth birthday at the latest.The provisions on the protection against notice of termination of employment and dismissal shall also apply during proceedings pursuant to Sections 15k and 15l.
If the period of part-time employment extends beyond the child¿s fourth birthday or if it commences after the child¿s fourth birthday, a notice of termination of employment given by the employer on grounds of the part-time employment intended or actually taken up may be contested in court. Section 105 Para. 5 ArbVG shall be applied.
If the employee takes up another gainful employment during part-time employment without the employer¿s consent, the employer may give notice of termination of the employment on grounds of this gainful employment within eight weeks from having obtained knowledge thereof, contrary to Paras. 1 and 2.
Maternity Protection Act §10, 12, 15a(4)-(5), 15n
Parental Leave for Fathers Act §7

Burden of proof

No relevant provisions identified.

Guaranteed right to return to work

No relevant provisions identified.

Results generated on: 22nd September 2014 at 22:18:08.
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