Vol. 1 - Pages 9.1-9.30 (Printed Version)

Reproductive System

MATERNITY PROTECTION IN LEGISLATION

Marie-Claire Séguret

During pregnancy, exposure to certain health and safety hazards of the job or the working environment may have adverse effects on the health of a woman worker and her unborn child. Before and after giving birth, she also needs a reasonable amount of time off from her job to recuperate, breast-feed and bond with her child. Many women want and need to be able to return to work after childbirth; this is increasingly recognized as a basic right in a world where the participation of women in the labour force is continuously increasing and approaching that of men in many countries. As most women need to support themselves and their families, continuity of income during maternity leave is vital.

Over time, governments have enacted a range of legislative measures to protect women workers during pregnancy and at childbirth. A feature of more recent measures is the prohibition of discrimination in employment on the grounds of pregnancy. Another trend is to provide the right for mothers and fathers to share leave entitlements after the birth so that either may care for the child. Collective bargaining in many countries contributes to the more effective application of such measures and often improves upon them. Employers also play an important role in furthering maternity protection through the terms of individual contracts of employment and enterprise policies.

The Limits of Protection

Laws providing maternity protection for working women are usually restricted to the formal sector, which may represent a small proportion of economic activity. These do not apply to women working in unregistered economic activities in the informal sector, who in many countries represent the majority of working women. While there is a trend worldwide to improve and extend maternity protection, how to protect the large segment of the population living and working outside the formal economy remains a major challenge.

In most countries, labour legislation provides maternity protection for women employed in industrial and non-industrial enterprises in the private and often also the public sector. Homeworkers, domestic employees, own-account workers and workers in enterprises employing only family members are frequently excluded. Since many women work in small firms, the relatively frequent exclusion of undertakings which employ less than a certain number of workers (e.g., five permanent workers in the Republic of Korea) is of concern.

Many women workers in precarious employment, such as temporary workers, or casual workers in Ireland, are excluded from the scope of labour legislation in a number of countries. Depending on the number of hours they work, part-time workers may also be excluded. Other groups of women may be excluded, such as women managers (e.g., Singapore, Switzerland), women whose earnings exceed a certain maximum (e.g., Mauritius) or women who are paid by results (e.g., the Philippines). In rare cases, unmarried women (e.g., teachers in Trinidad and Tobago) do not qualify for maternity leave. However, in Australia (federal), where parental leave is available to employees and their spouses, the term “spouse” is defined to include a de facto spouse. Where age limits are set (e.g., in Israel, women below the age of 18) they usually do not exclude very many women as they are normally fixed below or above the prime child-bearing ages.

Public servants are often covered by special rules, which may provide for more favourable conditions than those applicable to the private sector. For example, maternity leave may be longer, cash benefits may correspond to the full salary instead of a percentage of it, parental leave is more likely to be available, or the right to reinstatement may be more clearly established. In a significant number of countries, conditions in the public service can act as an agent of progress since collective bargaining agreements in the private sector are often negotiated along the lines of public service maternity protection rules.

REP8

 

Similar to labour legislation, social security laws may limit their application to certain sectors or categories of workers. While this legislation is often more restrictive than the corresponding labour laws in a country, it may provide access to maternity cash benefits to groups not covered by labour laws, such as self-employed women or women who work with their self-employed husbands. In many developing countries, owing to a lack of resources, social security legislation may only apply to a limited number of sectors.

Over the decades, however, the coverage of legislation has been extended to more economic sectors and categories of workers. Yet, while an employee may be covered by a law, the enjoyment of certain benefits, in particular maternity leave and cash benefits, may depend on certain eligibility requirements. Thus, while most countries protect maternity, working women do not enjoy a universal right to such protection.

Maternity Leave

Time off work for childbirth can vary from a few weeks to several months, often divided into two parts, before and after the birth. A period of employment prohibition may be stipulated for a part or the whole of the entitlement to ensure that women have sufficient rest. Maternity leave is commonly extended in case of illness, preterm or late birth, and multiple births, or shortened in case of miscarriage, stillbirth or infant death.

Normal duration

Under the ILO’s Maternity Protection Convention, 1919 (No. 3), “a woman shall not be permitted to work during the six weeks following her confinement; (and) shall have the right to leave her work if she produces a medical certificate stating that her confinement will probably take place within six weeks”. The Maternity Protection Convention (Revised), 1952 (No. 103), confirms the 12-week leave, including an employment prohibition for six weeks after the birth, but does not prescribe the use of the remaining six weeks. The Maternity Protection Recommendation, 1952 (No. 95), suggests a 14-week leave. Most of the countries surveyed meet the 12-week standard, and at least one-third grant longer periods.

A number of countries afford a possibility of choice in the distribution of maternity leave. In some, the law does not prescribe the distribution of maternity leave (e.g., Thailand), and women are entitled to start the leave as early or as late as they wish. In another group of countries, the law indicates the number of days to be taken after confinement; the balance can be taken either before or after the birth.

Other countries do not allow flexibility: the law provides for two periods of leave, before and after confinement. These periods may be equal, especially where the total leave is relatively short. Where the total leave entitlement exceeds 12 weeks, the prenatal period is often shorter than the postnatal period (e.g., in Germany six weeks before and eight weeks after the birth).

In a relatively small number of countries (e.g., Benin, Chile, Italy), the employment of women is prohibited during the whole period of maternity leave. In others, a period of compulsory leave is prescribed, often after confinement (e.g., Barbados, Ireland, India, Morocco). The most common requirement is a six-week compulsory period after birth. Over the past decade, the number of countries providing for some compulsory leave before the birth has increased. On the other hand, in some countries (e.g., Canada) there is no period of compulsory leave, as it is felt that the leave is a right that should be freely exercised, and that time off should be organized to suit the individual woman’s needs and preferences.

Eligibility for maternity leave

The legislation of most countries recognizes the right of women to maternity leave by stating the amount of leave to which women are entitled; a woman needs only to be employed at the time of going on leave to be eligible for the leave. In a number of countries, however, the law requires women to have been employed for a minimum period prior to the date on which they absent themselves. This period ranges from 13 weeks in Ontario or Ireland to two years in Zambia.

REP8

 

In several countries, women must have worked a certain number of hours in the week or month to be entitled to maternity leave or benefits. When such thresholds are high (as in Malta, 35 hours per week), they can result in excluding a large number of women, who form the majority of part-time workers. In a number of countries, however, thresholds have been lowered recently (e.g., in Ireland, from 16 to eight hours per week).

A small number of countries limit the number of times a woman may request maternity leave over a given period (for example two years), or restrict eligibility to a certain number of pregnancies, either with the same employer or throughout the woman’s life (e.g., Egypt, Malaysia). In Zimbabwe, for example, women are eligible for maternity leave once in every 24 months and for a maximum of three times during the period that they work for the same employer. In other countries, the women who have more than the prescribed number of children are eligible for maternity leave, but not for cash benefits (e.g., Thailand), or are eligible for a shorter period of leave with benefits (e.g., Sri Lanka: 12 weeks for the first two children, six weeks for the third and subsequent children). The number of countries that limit eligibility for maternity leave or benefits to a certain number of pregnancies, children or surviving children (between two and four) appears to be growing, although it is by no means certain that the duration of maternity leave is a decisive factor in motivating decisions about family size.

Advance notice to the employer

In most countries, the only requirement for women to be entitled to maternity leave is the presentation of a medical certificate. Elsewhere, women are also required to give their employer notice of their intention to take maternity leave. The period of notice ranges from as soon as the pregnancy is known (e.g., Germany) to one week before going on leave (e.g., Belgium). Failure to meet the notice requirement may lose women their right to maternity leave. Thus, in Ireland, information regarding the timing of maternity leave is to be supplied as soon as reasonably practicable, but not later than four weeks before the commencement of the leave. An employee loses her entitlement to maternity leave if she fails to satisfy this requirement. In Canada (federal), the notice requirement is waived where there is a valid reason why the notice cannot be given; at provincial level, the notice period ranges from four months to two weeks. If the notice period is not complied with, a woman worker is still entitled to the normal maternity leave in Manitoba; she is entitled to shorter periods (usually six weeks as opposed to 17 or 18) in most other provinces. In other countries, the law does not clarify the consequences of failing to give notice.

Cash Benefits

Most women cannot afford to forfeit their income during maternity leave; if they had to, many would not use all their leave. Since the birth of healthy children benefits the whole nation, as a matter of equity, employers should not bear the full cost of their workers’ absences. Since 1919, ILO standards have held that during maternity leave, women should receive cash benefits, and that these should be paid out of public funds or through a system of insurance. Convention No. 103 requires that contributions due under a compulsory social insurance scheme be paid based on the total number of men and women employed by the undertakings concerned, without distinction based on sex. Although in a few countries, maternity benefits represent only a relatively small percentage of wages, the level of two-thirds called for in Convention No. 103 is reached in several and exceeded in many others. In more than half of the countries surveyed, maternity benefits constitute 100% of insured wages or of full wages.

REP8

 

Many social security laws may provide a specific maternity benefit, thus recognizing maternity as a contingency in its own right. Others provide that during maternity leave, a worker will be entitled to sickness or unemployment benefits. Treating maternity as a disability or the leave as a period of unemployment could be considered unequal treatment since, in general, such benefits are only available during a certain period, and women who use them in connection with maternity may find they do not have enough left to cover actual sickness or unemployment periods later. Indeed, when the 1992 European Council Directive was drafted, a proposal that during maternity leave women would receive sickness benefits was strongly challenged; it was argued that in terms of equal treatment between men and women, maternity needed to be recognized as independent grounds for obtaining benefits. As a compromise, the maternity allowance was defined as guaranteeing an income at least equivalent to what the worker concerned would receive in the event of sickness.

In nearly 80 of the countries surveyed, benefits are paid by national social security schemes, and in over 40, these are at the expense of the employer. In about 15 countries, the responsibility for financing maternity benefits is shared between social security and the employer. Where benefits are financed jointly by social security and the employer, each may be required to pay half (e.g., Costa Rica), although other percentages may be found (e.g., Honduras: two-thirds by social security and one-third by the employer). Another type of contribution may be required of employers: when the amount of maternity benefit paid by social security is based on a statutory insurable income and represents a low percentage of a woman’s full wage, the law sometimes provides that the employer will pay the balance between the woman’s salary and the maternity benefit paid by the social security fund (e.g., in Burkina Faso). Voluntary additional payment by the employer is a feature of many collective agreements, and also of individual employment contracts. The involvement of employers in the payment of cash maternity benefits may be a realistic solution to the problem posed by the lack of other funds.

Protection of the Health of Pregnant and Nursing Women

In line with the requirements of the Maternity Protection Recommendation, 1952 (No. 95), many countries provide for various measures to protect the health of pregnant women and their children, seeking to minimize fatigue by the reorganization of working time or to protect women against dangerous or unhealthy work.

In a few countries (e.g., the Netherlands, Panama), the law specifies an obligation of the employer to organize work so that it does not affect the outcome of the pregnancy. This approach, which is in line with modern occupational health and safety practice, permits matching the needs of individual women with the corresponding preventive measures, and is therefore most satisfactory. Much more generally, protection is sought through prohibiting or limiting work which may be harmful to the health of the mother or child. Such a prohibition may be worded in general terms or may apply to certain types of hazardous work. However, in Mexico, the prohibition of employing women in unhealthy or dangerous work does not apply if the necessary health protection measures have, in the opinion of the competent authority, been taken; nor does it apply to women in managerial positions or those who possess a university degree or technical diploma, or the necessary knowledge and experience to carry on the work.

In many countries, the law provides that pregnant women and nursing mothers may not be allowed to do work that is “beyond their strength”, which “involves hazards”, “is dangerous to their health or that of their child”, or “requires a physical effort unsuited to their condition”. The application of such a general prohibition, however, can present problems: how, and by whom, shall it be determined that a job is beyond a person’s strength? By the worker concerned, the employer, the labour inspector, the occupational health physician, the woman’s own doctor? Differences in appreciation might lead to a woman being kept away from work which she could in fact do, while another might not be removed from work which is too taxing.

REP8

 

Other countries list, sometimes in great detail, the type of work that is prohibited to pregnant women and nursing mothers (e.g., Austria, Germany). The handling of loads is frequently regulated. Legislation in some countries specifically prohibits exposure to certain chemicals (e.g., benzene), biological agents, lead and radiation. Underground work is prohibited in Japan during pregnancy and one year after confinement. In Germany, piece-rate work and work on an assembly line with a fixed pace are prohibited. In a few countries, pregnant workers may not be assigned to work outside their permanent place of residence (e.g., Ghana, after the fourth month). In Austria, smoking is not permitted in places where pregnant women are working.

In a number of countries (e.g., Angola, Bulgaria, Haiti, Germany), the employer is required to transfer the worker to suitable work. Often, the worker must retain her former salary even if the salary of the post to which she is transferred is lower. In the Lao People’s Democratic Republic, the woman keeps her former salary during a three-month period, and is then paid at the rate corresponding to the job she is actually performing. In the Russian Federation, where a suitable post is to be given to a woman who can no longer perform her work, she retains her salary during the period in which a new post is found. In certain cases (e.g., Romania), the difference between the two salaries is paid by social security, an arrangement which is to be preferred, since the cost of maternity protection should not, as far as feasible, be borne by individual employers.

Transfer may also be available from work that is not dangerous in itself but which a medical practitioner has certified to be harmful to a particular woman’s state of health (e.g., France). In other countries, a transfer is possible at the request of the worker concerned (e.g., Canada, Switzerland). Where the law enables the employer to suggest a transfer, if there is a disagreement between the employer and the worker, an occupational physician will 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.

A few countries clarify the fact that the transfer is temporary and that the worker must be reassigned to her former job when she returns from maternity leave or at a specified time thereafter (e.g., France). Where a transfer is not possible, some countries provide that the worker will be granted sick leave (e.g., Seychelles) or, as was discussed above, that maternity leave will start early (e.g., Iceland).

Non-discrimination

Measures are taken in a growing number of countries to ensure that women do not suffer discrimination on account of pregnancy. Their aim is to ensure that pregnant women are considered for employment and treated during employment on an equal basis with men and with other women, and in particular are not demoted, do not lose seniority or are not denied promotion solely on the grounds of pregnancy. It is now more and more common for national legislation to prohibit discrimination on account of sex. Such a prohibition could be and indeed has been in many cases interpreted by the courts as a prohibition to discriminate on account of pregnancy. The European Court of Justice has followed this approach. In a 1989 judgement, the Court ruled that an employer who dismisses or refuses to recruit a woman because she is pregnant is in breach of Directive 76/207/EEC of the European Council on equal treatment. This judgement was important in clarifying the fact that sex discrimination exists when employment decisions are made on the basis of pregnancy even though the law does not specifically cite pregnancy as prohibited grounds for discrimination. It is customary in sex equality cases to compare the treatment given to a woman with the treatment given to a hypothetical man. The Court ruled that such comparison was not called for in the case of a pregnant woman, since pregnancy was unique to women. Where unfavourable treatment is made on grounds of pregnancy, there is by definition discrimination on grounds of sex. This is consistent with the position of the ILO Committee of Experts on the Application of Conventions and Recommendations concerning the scope of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), which notes the discriminatory nature of distinctions on the basis of pregnancy, confinement and related medical conditions (ILO 1988).

REP8

 

A number of countries provide for an explicit prohibition of discrimination on the grounds of pregnancy (e.g., Australia, Italy, US, Venezuela). Other countries define discrimination on grounds of sex to include discrimination on grounds of pregnancy or absence on maternity leave (e.g., Finland). In the US, protection is further ensured through treating pregnancy as a disability: in undertakings with more than 15 workers, discrimination is prohibited against pregnant women, women at childbirth and women who are affected by related medical conditions; and policies and practices in connection with pregnancy and related matters must be applied on the same terms and conditions as applied to other disabilities.

In several countries, the law contains precise requirements which illustrate instances of discrimination on the grounds of pregnancy. For example, in the Russian Federation, an employer may not refuse to hire a woman because she is pregnant; if a pregnant woman is not hired, the employer must state in writing the reasons for not recruiting her. In France, it is unlawful for an employer to take pregnancy into account in refusing to employ a woman, in terminating her contract during a period of probation or in ordering her transfer. It is also unlawful for the employer to seek to determine whether an applicant is pregnant, or to cause such information to be sought. Similarly, women cannot be required to reveal the fact that they are pregnant, whether they apply for a job or are employed in one, except when they request to benefit from any law or regulation governing the protection of pregnant women.

Transfers unilaterally and arbitrarily imposed on a pregnant woman can constitute discrimination. In Bolivia, as in other countries in the region, a woman is protected against involuntary transfer during pregnancy and up to a year after the birth of her child.

The issue of combining the right of working women to health protection during pregnancy and their right not to suffer discrimination poses a special difficulty at the time of recruitment. Should a pregnant applicant reveal her condition, especially one who applies for a position involving work which is prohibited to pregnant women? In a 1988 judgement, the Federal Labour Court of Germany held that a pregnant woman applying for a job involving exclusively night work, which is prohibited to pregnant women under German legislation, should inform a potential employer of her condition. The judgement was overruled by the European Court of Justice as being contrary to the 1976 EC Directive on equal treatment. The Court found that the Directive precluded an employment contract from being held to be void on account of the statutory prohibition of night work, or from being avoided by the employer on account of a mistake on his or her part as to an essential personal characteristic of the woman at the time of the conclusion of the contract. The employee’s inability, due to pregnancy, to perform the work for which she was being recruited was temporary since the contract was not concluded with a fixed term. It would therefore be contrary to the objective of the Directive to hold it invalid or void because of such an inability.

Employment Security

Many women have lost their jobs because of a pregnancy. Nowadays, although the extent of protection varies, employment security is a significant component of maternity protection policies.

International labour standards address the issue in two different ways. The maternity protection Conventions prohibit dismissal during maternity leave and any extension thereof, or at such time as a notice of dismissal would expire during the leave under the terms of Convention No. 3, Article 4 and Convention No. 103, Article 6. Dismissal on grounds that might be regarded as legitimate is not considered to be permitted during this period (ILO 1965). In the event that a woman has been dismissed before going on maternity leave, the notice should be suspended for the time she is absent and continue after her return. The Maternity Protection Recommendation, 1952 (No. 95), calls for the protection of a pregnant woman’s employment from the date the employer is informed of the pregnancy until one month after her return from maternity leave. It identifies cases of serious fault by the employed woman, the shutting down of the undertaking and the expiry of a fixed-term contract as legitimate grounds for dismissal during the protected period. The Termination of Employment Convention, 1982 (No. 158; Article 5(d)–(e)), does not prohibit dismissal, but provides that pregnancy or absence from work on maternity leave shall not constitute valid reasons for termination of employment.

REP8

 

At the level of the European Union, the 1992 Directive prohibits dismissal from the beginning of pregnancy until the end of the maternity leave, save in exceptional cases not connected with the worker’s condition.

Usually, countries provide for two sets of rules regarding dismissal. Dismissal with notice applies in such cases as the closure of the enterprise, redundancy and where, for a variety of reasons, the worker is unable to perform the work for which he or she has been recruited or fails to perform such work to the employer’s satisfaction. Dismissal without notice is used to terminate the services of a worker who is guilty of gross negligence, serious misconduct or other grave instances of behaviour, usually comprehensively listed in the legislation.

Where dismissal with notice is concerned, it is clear that employers could arbitrarily decide that pregnancy is incompatible with a worker’s tasks and dismiss her on grounds of pregnancy. Those who wish to avoid their obligations to pregnant women, or even simply do not like to have pregnant women around the workplace, could find a pretext to dismiss workers during pregnancy even if, in view of the existence of non-discrimination rules, they would refrain from using pregnancy as grounds for dismissal. Many people agree that it is legitimate to protect workers against such discriminatory decisions: the prohibition of dismissal with notice on grounds of pregnancy or during pregnancy and maternity leave is often viewed as a measure of equity and is in force in many countries.

The ILO Committee of Experts on the Application of Conventions and Recommendations considers that protection against dismissal does not preclude an employer from terminating an employment relationship because he or she has detected a serious fault on the part of a woman employee: rather, when there are reasons such as this to justify dismissal, the employer is obliged to extend the legal period of notice by any period required to complete the period of protection under the Conventions. This is the situation, for example, in Belgium, where an employer who has legal grounds for dismissing a woman cannot do so while she is on maternity leave, but can serve notice so that it expires after the woman returns from leave.

The protection of pregnant women against dismissal in case of closure of the undertaking or economic retrenchment poses a similar problem. It is indeed a burden for a firm which ceases operation to continue to pay the salary of a person who is not working for them any more, even for a short period. However, recruitment prospects are often bleaker for women who are pregnant than for women who are not, or for men, and pregnant women particularly need the emotional and financial security of continuing to be employed. Where women may not be dismissed during pregnancy, they can put off looking for a job until after the birth. In fact, where legislation provides for the order in which various categories of workers to be retrenched are to be dismissed, pregnant women are among those to be dismissed last or next to last (e.g., Ethiopia).

Leave and Benefits for Fathers and Parents

Going beyond the protection of the health and employment status of pregnant and nursing women, many countries provide for paternity leave (a short period of leave at or about the time of birth). Other forms of leave are linked to the needs of children. One type is adoption leave, and another is leave to facilitate child-rearing. Many countries foresee the latter type of leave, but use different approaches. One group provides for time off for the mother of very young children (optional maternity leave), while another provides additional leave for both parents (parental education leave). The view that both the father and mother need to be available to care for young children is also reflected in integrated parental leave systems, which provide a long period of leave available to both parents.

REP8