France - Maternity protection - 2012

Decree regarding the protection of workers in high pressure environments No. 90-277 du 28 March 1990, Journal officiel, 1990-03-29, n° 75, consolidated version amended up to 22 June 2001.

Labour Code (Code du Travail) No. 73-4 dated 2 January 1973, Journal officiel, 1973-01-03

Social Security Code (Code de la sécurité sociale), consolidated text, consulted November 2009

Public Health Code (Code de la santé publique), (Consolidated text, consulted July 2007)

Decree No. 2004-1230 of 17 November 2004, regarding the fixing of the period of maternity insurance, Journal officiel, 2004-12-30, n° 303, texte n° 37

Web Site of Health Insurance of France

Collective Agreement Regarding Domestic Workers of 24 November 1999, extended by decree of 2 March 2000 (JO of 11 March 2000)

Maternity protection in the Labour Code covers all persons employed on the basis of a contract of employment in the private and public sectors, in the liberal professions, trade unions and associations of all kinds and domestic workers.

The worker must inform the employer of the reason of her absence and of the date on which she intends to resume work.

Eight weeks of the maternity leave are compulsory, of which at least 6 weeks must be taken after childbirth.

6 weeks before and 10 weeks after the expected date of birth.
At her request and if her state of health as certified by a medical practitioner allows it, the woman may reduce the prenatal leave with up to 3 weeks with a corresponding increase of postnatal leave. In case of twin births prenatal leave is extended to 12 weeks and postnatal leave to 22 weeks. For other multiple births prenatal leave is extended to 24 weeks and postnatal leave to 22 weeks. The distribution of leave in the case of a twin birth may be altered by increasing the prenatal and reducing the postnatal leave with up to 4 weeks or by reducing the prenatal leave with up to 3 weeks with a corresponding increase of postnatal leave. For the third and each subsequent child (if the woman already has two or more children or if her household is in charge of two or more children) the duration is extended to 8 weeks before and 18 weeks after the expected date of birth. The 8 weeks’ period of prenatal leave may be extended by two weeks with a corresponding reduction of postnatal leave. If a woman who benefits from a reduction of her prenatal leave is granted a sick-leave during this period, the reduction of her prenatal leave will be cancelled with a corresponding reduction of postnatal leave. When confinement occurs before the expected date the maternity leave entitlement is retained for the full period.

Maternity leave may be extended on medical grounds arising out of pregnancy and confinement by a maximum of two weeks before and 4 weeks after the birth. If the birth takes place more than 6 weeks before the expected date and the child must be hospitalised after the birth, the period of maternity leave is extended with the period between the actual and the expected date of birth. If the child is hospitalised until the end of the sixth week following confinement, all or part of the leave remaining beyond the sixth week following confinement may be postponed until the end of the hospitalisation.

Maternity leave may be extended on medical grounds arising out of pregnancy and confinement by a maximum of two weeks before and 4 weeks after the birth. If the birth takes place more than 6 weeks before the expected date and the child must be hospitalised after the birth, the period of maternity leave is extended with the period between the actual and the expected date of birth. If the child is hospitalised until the end of the sixth week following confinement, all or part of the leave remaining beyond the sixth week following confinement may be postponed until the end of the hospitalisation.

The Labour Code covers all persons employed on the basis of a contract of employment in the private and public sectors, in the liberal professions, trade unions and associations of all kinds.

At least one year on seniority in the enterprise at the date of birth of the child or at the date of the arrival in the household in case of adoption. The worker must inform his/her employer of the starting date and intended duration of parental leave/period of part-time work, at least two months before the starting date. If the period of parental leave/part-time work immediately follows a period of maternity or adoption leave, the worker must inform the employer at least one month before the beginning of parental leave/period of part-time work. If the employee wants to extend the parental leave he/she has to inform the employer at least one month before the original period of leave finishes.

The mother and the father (or adoptive mother and father) are entitled to take parental leave or to work part time (minimum 16 hours a week) until the third birthday of the child, or in case of adoption of a child below 3 years of age until the third anniversary of the child’s arrival in the home. Parental leave or part-time work are granted for an initial period of one year, which may be extended twice. If the adopted child is older than 3 but has not yet reached the age at the end of compulsory education, the periods of parental leave or part-time work cannot exceed one year from the day of arrival of the child in the household. Parental leave and part-time work may be extended by up to one year in the event of sickness, accident or severe handicap of the child. For the purpose of seniority rights, the period of parental leave is counted as 50 per cent of time worked.

The Labour Code covers all persons employed on the basis of a contract of employment in the private and public sectors, in the liberal professions, trade unions and associations of all kinds.

The worker must notify his employer one month before the date when he intends to take paternity leave and indicate the date on which he intends to resume work.

The employee must notify the employer in case he takes the leave when the wife died during pregnancy.

The father may take leave for a maximum period of 10 weeks after the birth of the child if the mother dies during maternity leave. The period of leave is counted as time worked for the purpose of calculating seniority rights.

At the birth of his child the father is entitled to 11 consecutive days of paternity leave or to 18 consecutive days in case of multiple births.

Paternity leave should be used during the 4 months that follow the birth. However, the paternity leave can be postponed and used after these 4 months in the following cases: if the child is hospitalised (in this case the leave should be used during the 4 months following the end of the hospiltalisation), or if the mother dies (in this case the leave should be taken during the 4 months that follow the end of maternity leave which can be used by the father if the mother dies). All workers are also entitled to a special leave for family reasons of 3 days for the birth or adoption of a child.

All adoptive parents employed on the basis of a contract of employment in the private and public sectors.

The worker must inform the employer of the reason of his/her absence and of the date on which he/she intends to resume work.

An adoptive parent is entitled to 10 weeks of adoption leave counted from up to 7 days before the date of arrival in the household of the child. If the adoption brings the total number of children in the family to three or more, the duration of the leave is 18 weeks. In case of multiple adoption the leave is extended to 22 weeks. If a child is adopted by a couple where both parents are employed, adoption leave is extended with 11 days (18 days in case of multiple adoption) on the condition that the leave is shared between the two parents. In this case, the duration of the leave cannot be split into more than two periods, of which the shortest cannot be less than 11 days. The period of adoption leave is counted as time worked for the purpose of calculating seniority rights. A worker who adopts a child is also entitled to a maximum of 6 weeks of unpaid leave when he/she goes abroad or to an overseas department, an overseas community or to Nouvelle-Calédonie, from a metropolitan department, another overseas department or from Saint-Pierre-and-Miquelon.

Any employee who has worked for at least one year prior to the date of birth of the child or the adoption of the child or the arrival of the adopted child at home of a child that still goes to school has the right to reduce the working hours. The reduction can not be less than 16 hours per week.

At least one year. They can be renewed twice. Up to the third birthday of the child. In case of an adoption of a child younger than three years the period of three possible years starts at the time the child comes to the household. If the adopted child is older than 3 but has not yet reached the age at the end of compulsory education, the periods of parental leave or part-time work cannot exceed one year from the day of arrival of the child in the household.

The employee cannot change the part-time work arrangement except when the employer agrees or when a collectve agreement explicitly allows it.

All salaried employees and persons working for one or more employers, as well as other categories of workers compulsorily insured under the general social insurance scheme, (for example home workers, sale representatives, taxi drivers, insurance agents and artists) as well as self-employed persons who are compulsorily insured with the sickness and maternity insurance scheme for the self-employed (non-wage earning workers in non-agricultural professions, for example artisans; industrial, commercial and liberal professions).

Claimants of maternity benefits must be registered with the local sickness insurance fund for 10 months before the expected date of birth. Furthermore, they must either have completed at least 200 hours of employment during the calendar quarter or during the 90 days preceding the beginning of the ninth month before the expected date of birth or the date on which prenatal leave begins, or have contributed to the fund for an amount equal to 1015 times the minimum wage within the six months preceding the beginning of the ninth month before he expected date or birth or the date on which prenatal leave begins. Maternity benefits may be claimed only if the woman stops working for at least 8 weeks.

For the duration of maternity leave and any extension thereof the worker is entitled to cash maternity benefits. (Normal duration of maternity leave is 6 weeks before and 10 weeks after the expected date of birth (for the third and each subsequent child 8 + 18 weeks, for twins 12 + 22 weeks, for other multiple births 24 + 22 weeks) and maternity leave may be extended on medical grounds by a maximum of two weeks before and 4 weeks after the birth.) The daily cash benefit is equal to the basic wage up to a ceiling fixed by social security. The basic daily wage is normally calculated on the basis of the three preceding monthly wages (after deduction of social contributions). Benefits are payable even if the child is stillborn.
100 per cent of the daily wages calculated on the basis of the three preceding monthly wages (after deduction of social contributions).

Social Security, Health Insurance Funds.

All salaried fathers and fathers working for one or more employers, as well as other categories of workers compulsorily insured under the general social insurance scheme, (for example domestic workers, sale representatives, taxi drivers, insurance agents and artists) as well as self-employed persons who are compulsorily insured with the sickness and maternity insurance scheme for the self-employed (non-wage earning workers in non-agricultural professions, for example artisans; industrial, commercial and liberal professions).

Claimants of cash benefits must be registered with the local sickness insurance fund for 10 months before the expected date of birth. Furthermore, they must either have completed at least 200 hours of employment during the calendar quarter or during the 90 days preceding the date on which paternity leave begins, or have contributed to the fund for an amount equal to 1015 times the minimum wage within the six months preceding the date on which paternity leave begins. Cash benefits may be claimed only if the father stops working during the leave.

For the duration of paternity leave (normal duration 11 consecutive days, in case of multiple births 18 consecutive days) the father is entitled to cash benefits equal to the basic wage up to a ceiling fixed by social security. The basic daily wage is normally calculated on the basis of the three preceding monthly wages (after deduction of social contributions). Self-employed fathers receive a daily flat rate for the duration of paternity leave, on condition that they stop all economic activity. Collaborating spouses of self-employed women are entitled to a replacement benefit if they stop working for at least 11 days and hire a person to replace them to carry out their usual professional and household activities.

Social Security, Health Insurance Funds.

All salaried employees and persons working for one or more employers, as well as other categories of workers compulsorily insured under the general social insurance scheme, (for example domestic workers, sale representatives, taxi drivers, insurance agents and artists) as well as self-employed persons who are compulsorily insured with the sickness and maternity insurance scheme for the self-employed (non-wage earning workers in non-agricultural professions, for example artisans; industrial, commercial and liberal professions).

Claimants of cash benefits must be registered with the local sickness insurance fund for 10 months before the arrival of the child in the household. Furthermore, they must either have completed at least 200 hours of employment during the calendar quarter or during the 90 days preceding the date on which adoption leave begins, or have contributed to the fund for an amount equal to 1015 times the minimum wage within the six months preceding the date on which adoption leave begins. Cash benefits may be claimed only if the parent stops working during the leave.

For the duration of adoption leave (normal duration 10 weeks, in case of multiple adoption 22 weeks, if the adoption brings the total number of children in the family to three or more 18 weeks, if the leave is shared between the two adoptive parents the leave is extended with 11 days (18 days in case of multiple adoption)) the adoptive parent is entitled to cash benefits equal to the basic wage up to a ceiling fixed by social security. The basic daily wage is normally calculated on the basis of the three preceding monthly wages (after deduction of social contributions). Self-employed adoptive mothers receive half of the flat rate benefit that self-employed natural mothers are entitled to at childbirth, if they stop all economic activity when the child arrives in the household. They also receive a daily flat-rate benefit for a maximum of 45 days. Collaborating spouses of self-employed men are also entitled to a flat rate benefit as well as a replacement benefit if they stop working for at least a week and hire a person to replace them to carry out their usual professional and household activities.

Social Security, Health Insurance Funds.

During a period starting 4 months before the expected date of birth and ending 12 days after the birth, the Maternity Insurance covers the totality of medical expenses, pharmaceuticals, laboratorial analysis and examinations, and hospitalisation related or not to pregnancy, childbirth or its after-effects. When the childbirth takes place before this period, the Maternity Insurance covers the totality of the expenses mentioned above as from the date of childbirth and until the expiry of the aforementioned period. The Maternity Insurance also covers (non-exhaustive list): pathological situations noted by a midwife as from the first antenatal examination; if necessary, a medical examination of the future father; a HIV-test; and other medical expenses, pharmaceuticals, laboratorial analysis and examinations, apparatuses and hospitalisation related to pregnancy, childbirth or its after-effects.

Social Security, Health Insurance Funds.

During one year following the date of birth breastfeeding mothers are entitled to breastfeeding breaks of one hour per day during working hours.

The breastfeeding breaks are divided into two 30-minutes breaks, one in the morning and one in the afternoon. The time of the break should be determined by agreement between the worker and the employer. In case no agreement is reached, it should be in the middle of each half of the working day.

The mother may always breastfeed her baby in the enterprise. Employers employing more than 100 women above the age of 15 years can be requested to install special breastfeeding rooms in or close to the enterprise.

The nursing facilities must satisfy certain conditions: they must be separated from the working premises, be provided with a sufficient quantity of water or be placed near a washbasin, be provided with chairs appropriate for breastfeeding, and be maintained at a suitable temperature under hygienic conditions. Pregnant women and breastfeeding mothers must have the possibility to lay down and rest under suitable conditions.

A pregnant worker or a worker who has recently given birth who works at night has the right to be assigned to day work at her demand during the entire period of pregnancy and for the legal period of postnatal leave. The pregnant worker can also be assigned to day work when the occupational health physician states that night work is not compatible with her pregnancy. The assignment to day work should not entail any reduction as to remuneration. In case the employer is not able to propose another job the worker is entitled to a paid leave until the beginning of maternity leave and in some cases during a complementary period following the end of maternity leave. During this time the worker is entitled to remuneration consisting of a daily allowance from social security and a remuneration complement from the employer.

An employee may leave her work, without any reduction of her remuneration, in order to attend compulsory medical examinations in relation to her pregnancy and childbirth. These absences are counted as hours worked for determining her paid leave and seniority rights.

The employee can take unpaid leave in cases of the sickness of a child. If the child is below 16 years the duration of the leave is 3 days per year. It can be extended to 5 days if the child is below 1 year or if the employee looks after three or more children below 16 years.

The employer is responsible of taking the necessary measures to ensure the safety and to protect the worker’s physical and mental health.

The employer must, for all activities likely to present a risk of exposure to agent which are carcinogenic, mutagenic or poisonous for the reproduction, as well as of exposure to dangerous chemical or biological agents, evaluate the nature, the degree and the exposure time of the workers in order to be able to assess any risk concerning their safety or health and to define measures to be taken. The occupational health practitioner’s medical surveillance is reinforced during a worker’s pregnancy, six months after confinement and for the duration of breastfeeding.

In case a pregnant woman or a woman who has recently given birth occupies a post which exposes her to a risk, the employer must propose work which is compatible with her state. The employer’s suggestion should take into account the conclusions and indications of the occupational health physician regarding the worker’s aptitude to exert one of the existing tasks in the company, if needed by the implementation of measures such as a modification of the post she occupies or a temporary transfer to another post. This modification of her post or temporary transfer may not entail a loss in wages and terminates at the latest one month after the worker’s return from postnatal maternity leave. In case the employer is not able to propose another job the worker is entitled to a paid leave (except for the period covered by maternity leave). During this time the worker is entitled to remuneration consisting of a daily allowance from social security and a remuneration complement from the employer.

Temporary transfer for health reasons: A pregnant woman may, at her request or at the initiative of her employer, be transferred temporarily to another job, if her state of health as certified by a medical practitioner so warrants. In the event the woman and the employer disagree, or where the change of job is suggested by the employer, only an occupational health physician is competent to determine whether there is any medical need for changing jobs and whether the worker is fit to take up the job that has been suggested to her. The temporary transfer may not entail a loss in wages and will terminate when the woman’s health so permits, at the latest at the end of maternity leave.

Temporary transfer or modification of working conditions if exposure to risk: In case a pregnant woman or a woman who has recently given birth occupies a post which exposes her to a risk, the employer must propose another job which is compatible with her state. The employer’s suggestion should take into account the conclusions and indications of the occupational health physician regarding the worker’s aptitude to exert one of the existing tasks in the company, if needed by the implementation of measures such as a modification of the post she occupies or a temporary transfer to another post. This modification of her post or temporary transfer may not entail a loss in wages and terminates at the latest one month after the worker’s return from postnatal maternity leave. In case the employer is not able to propose another job the worker is entitled to a paid leave (except for the period covered by maternity leave). During this time the worker is entitled to remuneration consisting of a daily allowance from social security and a remuneration complement from the employer.

Temporary transfer from night work to day work: A pregnant worker or a worker who has recently given birth who works at night has the right to be assigned to day work at her demand during the entire period of pregnancy and for the legal period of postnatal leave. The pregnant worker can also be assigned to day work when the occupational health physician states that night work is not compatible with her pregnancy. The assignment to day work should not entail any reduction as to remuneration. In case the employer is not able to propose another job the worker is entitled to a paid leave until the beginning of maternity leave and in some cases during a complementary period following the end of maternity leave. During this time the worker is entitled to remuneration consisting of a daily allowance from social security and a remuneration complement from the employer.

In case the employer is not able to propose another job to a pregnant worker or a worker who has recently given birth who is employed in night work or in work that exposes her to a risk, she is entitled to a paid leave (except for the period covered by maternity leave). During this time the worker is entitled to remuneration consisting of a daily allowance from social security and a remuneration complement from the employer.

Transport on delivery tricycles, carts and hand trucks is prohibited for pregnant women. Women must not carry, drag or push any load exceeding the following weights: porterage 25 kg; transport in cars running on rails (including weight of vehicle 600 kg; transport in wheelbarrows (including weight of vehicle) 40 kg; transport on three-wheeled or four-wheeled vehicles (including weight of vehicle) 60 kg; transport in two-wheeled hand carts (including weight of vehicle) 130 kg.

Pregnant and nursing women cannot be assigned to or kept on workstations entailing exposure to benzene or to agents classified as poisonous for reproduction. Exposure to the rubella virus or toxoplasmosis is prohibited for pregnant women (unless it is proven that the woman worker is sufficiently protected from these agents through her immun system). In the event of pregnancy, provisions must be taken so that the exposure of ionising radiation of the pregnant worker is such that the exposure of the unborn child is as low as reasonably possible, and in any case below 1mSv. A nursing woman should not be assigned or kept on workstations involving a risk of exposure to ionising radiation. General prohibitions: It is prohibited to employ women on the following operations (non exhaustive list): preparation and conditioning of triphosphoric esters; usage of mercury in the fur industry; work involving the exposure of free silica (for example demolition of industrial furnaces comprising refractory materials); work involving the usage of mechanical devices powered by compressed air (i.e. jackhammers); work involving the exposure to nitrite and chloronitrite derivatives of benzonic hydrocarbons, anilin, benzidine and homologous.

When carrying out the assessment of health risks and safety of the workers, the employer is held to evaluate and, if necessary, measure the levels of mechanical vibrations to which the workers are exposed. It is prohibited to assign pregnant women to work in high pressure environments. Pregnant women are prohibited from working in stalls outside shops when the temperature is below 0°C.

No person can be set aside in the procedure of recruitment or access to training on the grounds of sex or of his/her family situation (among other things). Furthermore, no employee can be sanctioned or discriminated against (directly or indirectly), in particular with regard to remuneration, training, reclassification, assignment, qualification, classification, promotion, transfer or renewal of contract on the grounds of (amongst other things) sex or his/her family situation. It is prohibited to: mention the sex or the family situation of the desired candidate in an offer of employment, or in any other form of publicity related to recruitment; refuse to employ a person, transfer, cancel or refuse to renew a contract of employment of an employee, taking sex or family situation into consideration or use different selection criteria according to sex or family situation; take sex into account in any measures as to remuneration, training, assignment, qualification, classification, promotion or transfer. However, these measures do not hinder temporary intervention measures that only benefit women, aiming at establishing equal opportunities between men and women.

No employer may take into consideration the fact that a woman is pregnant as a ground for refusing to recruit her, for terminating her contract of employment during any period of probation or for ordering her transfer. It is therefore unlawful for an employer to seek to obtain any information relating to her pregnancy or instruct others to obtain such information. No woman applying for, or employed in, any job may be required to reveal the fact that she is pregnant, except where she requests to benefit from any law or regulation governing the protection of pregnant women. In the event of a dispute, the employer should communicate to the judge all the elements taken into consideration to reach a decision. The benefit of the doubt is given to the pregnant worker.

Dismissal is prohibited during pregnancy, where this has been medically certified, during maternity leave (whether or not the worker uses the right to take the leave) and during the period of paid adoption leave, as well as during four weeks after the end of maternity and adoption leave. Dismissal is nonetheless permitted in case of a serious fault of the worker unrelated to pregnancy, or when the employer is unable to maintain the contract of employment for reasons unconnected with pregnancy, confinement or adoption. However, the dismissal or notice of dismissal may not take place during the periods of maternity and adoption leave. Dismissal is considered to be null and void (except for the cases described above) if, the worker provides to the employer within 15 days as to the day of notice of dismissal, either a medical certificate attesting her pregnancy, or a certificate issued by the departmental child welfare service or the recognised adoption service arranging for the placement, attesting the arrival in his/her household, within 15 days, of a child, with a view to adoption. The above provisions do not affect the expiry of a fixed-term contract.

In case of dispute when applying the provisions against discrimination on the grounds of sex, pregnancy or family situation, it falls on the defending party to prove that his/her decision is justified by objective elements that have nothing to do with discrimination.

At the end of maternity leave, paternity leave, adoption leave (including the period of unpaid adoption leave) and parental leave or period of part time work, the employee has the right to return to the his/her previous work, or to a similar job remunerated at least at the same rate. In addition the employee is entitled to wage adjustments rates granted during her/his leave period.