Maternity Protection Act

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Basic data
Title: Law on the protection of mothers at work, in training and in study
Short title: Maternity Protection Act
Previous title: Working Mother Protection Act
Abbreviation: MuSchG
Type: Federal law
Scope: Federal Republic of Germany
Legal matter: Employment Law
References : 8052-5
Original version from: January 24, 1952
( Federal Law Gazette I p. 69 )
Entry into force on: February 6, 1952
New announcement from: June 20, 2002
( BGBl. I p. 2318 )
Last revision from: 23 May 2017
( Federal Law Gazette I p. 1228 )
Entry into force of the
new version on: 		predominantly 1st January 2018
Last change by: Art. 57 G of December 12, 2019
( Federal Law Gazette I p. 2652, 2721 )
Effective date of the
last change: 		January 1, 2020
(Art. 60 G of December 12, 2019)
GESTA : G026
Weblink: Legal text
Please note the note on the applicable legal version.

The German Maternity Protection Act ( MuSchG ) protects the health of women and their children during pregnancy , after childbirth and during breastfeeding . It was revised on May 23, 2017.

It applies to work , training and study places ; special maternity protection ordinances apply to the maternity protection of civil servants and soldiers , but their content is comparable to the maternity protection act .

The regulations largely follow the requirements for maternity protection as drawn up by the International Labor Organization .

content

The Maternity Protection Act came into force on February 6, 1952 and has been amended several times since then. It was supplemented by the regulation on the protection of mothers at work (MuSchArbV) , which implemented the EC maternity protection directive . Since 1992, the Maternity Protection Directive has defined minimum standards for the safety and health protection of pregnant workers, those who have recently given birth and those who are breastfeeding in the workplace.

The central provisions of the Maternity Protection Act concern

as well as certain notification obligations to the employer and regulations on overtime, night and Sunday work.

According to Section 16 , expectant mothers may not be employed if, according to a medical certificate, the life or health of the mother or child is at risk if the employment continues. Section 11 also prohibits expectant mothers from being engaged in heavy work such as heavy lifting, assembly line work and piecework. In the last six weeks before the delivery, they may only be employed if they expressly (and revocably at any time) declare that they are ready to work. Furthermore, according to Section 3 , mothers may not be employed for eight weeks, and in the case of premature and multiple births twelve weeks after the birth. Section 18 provides for an obligation to continue to pay for the duration of the prohibition of employment . Sections 19 and 20 regulate the payment of maternity benefit by the health insurance companies. Section 7 regulates the paid leave for examinations during pregnancy and maternity.

According to Section 9 of the Maternity Protection Act, any notice of termination given to a woman during pregnancy and up to four months after childbirth is inadmissible if the employer was aware of the pregnancy or confinement or two weeks after receipt of the notice of termination becomes. As an exception, the competent authority under state law can declare dismissal admissible in special cases that are not related to the condition of a woman during pregnancy or her situation up to four months after the delivery. The notification to a pregnant woman not to extend a fixed-term employment relationship (non-extension notification) is not covered by the protection against dismissal.

According to the new MuSchG, employers must continue to carry out a risk assessment in accordance with the general occupational health and safety requirements for every activity - but not for every workplace - regardless of whether it is carried out by a man or a woman. However, the legislature has refrained from specifying the necessary measures in a second step. After the notification of the pregnancy, the employer is now only obliged to take the measures specified as necessary in the abstract risk assessment and to offer the pregnant woman a conversation about further possibilities of improving working conditions at the workplace, from which, however, no further obligations follow (§ 10 para . 2 MuSchG). With the elimination of the specific risk assessment, the previously provided prohibition of employment, which should accompany it, also no longer applies. This only exists until the necessary protective measures have been defined and taken, if they have been identified as necessary in the context of the abstract risk assessment (Section 10 (3) MuSchG). The measures are to be checked for their effectiveness and adapted to changed circumstances if this is necessary. This corresponds to Section 3 (1) sentence 2 ArbSchG. If the abstract risk assessment did not reveal any irresponsible risk, the woman can continue to be employed. An employment ban only applies if the specified protective measures are not implemented immediately (Section 10 (3) MuSchG).

Violations of the Maternity Protection Act are punished as a criminal offense or an administrative offense ( Sections 32 and 33 ). The Maternity Protection Act is therefore part of the subsidiary criminal law .

Historical

In 1878 , for the first time in Germany , Section 138 (4) of the Reichsgewerbeordnung established a ban on female factory workers up to three weeks after their birth. The law on health insurance for workers (KGV) of 1883, which was introduced under Bismarck's chancellorship , granted maternity leave to women who had recently given birth to workers in the craft and other commercial enterprises . Since this was only half, later 3/4 of the basic wage, the employment ban was often circumvented.

After the turn of the century, adequate maternity insurance was the subject of numerous initiatives by the International Labor Organization (ILO), the trade unions , representatives of political parties such as the SPD ( Adele Schreiber ) or the German Center Party , the workers' welfare and civic women's associations. In addition to protecting the health of women, this also involved reducing infant mortality for reasons of population policy.

With the law on the employment of women before and after childbirth of July 16, 1927, the German Reichstag ratified the Washington Convention of November 29, 1919 on the employment of women before and after childbirth. According to § 4 of this law, the termination - which was not given for an important reason - was ineffective six weeks before and after the childbirth. The type and scope of compensation payments in the event of pregnancy and maternity, such as maternity allowance and breastfeeding allowance, were regulated in particular in Sections 195 et seq. Of the Reich Insurance Code of 1911.

In the law on the protection of working mothers of May 17, 1942 (MSchG), maternity protection was considerably extended. The scope was extended to all agricultural and forest workers and all domestic workers, the employment ban was extended to eight weeks, and a ban on overtime work beyond eight hours and a ban on dismissal during pregnancy were introduced. Section 6 of the Act extended protection against dismissal to the period of pregnancy and up to four months after the birth.

In the Maternity Protection Act of January 24, 1952, amended by the Act amending the Maternity Protection Act and the Reich Insurance Code of August 24, 1965, this period regulation for protection against dismissal was retained ( Section 9 (1) sentence 1 MuSchG). The maternity allowance is now in § 24i regulated SGB V, to the § 19 MuSchG points.

Reform efforts

A joint study by the Bureau Reduction Office (GBü) in the Federal Chancellery, the Federal Ministry for Family, Seniors, Women and Youth (BMFSFJ) and the Federal Statistical Office (StBA) on the compliance costs of the Maternity Protection Act in business and administration from 2013 suggests measures to reduce bureaucracy in particular a repeal of § 18 MuSchG, the refusal to issue a notification in the event of dismissals due to insolvency, a more flexible working hours (after 8 p.m., Sunday work) and thus a lower number of applications for exceptions to the ban on night, Sunday, public holiday and Overtime work in accordance with Section 8 (6) MuSchG and the specification of the norm regarding breastfeeding times.

In the coalition agreement for the 18th legislative period , a reform of the maternity protection law is agreed. The goals are "comprehensive protection, more transparency and less bureaucracy". This requires an "adjustment of the maternity protection regulations to the latest state of knowledge about risks for pregnant women and nursing mothers in the workplace".

In terms of legal policy, different demands are made on the government. They range, for example, from better protection against dismissal, especially in the case of stillbirths and miscarriages, to reducing the discriminatory effect of employment bans through forward-looking occupational health and safety, to seizure protection for donations from the Mother and Child Foundation .

In 2016, an amendment to the Maternity Protection Act was up for discussion, according to which school girls should also be entitled to maternity leave. Critical voices pointed out that it was important to give those affected some leeway, “for example so that they are not barred from exams after giving birth”. There was initially no agreement between the governing coalition. In May 2017, the law on the new regulation of maternity protection law was promulgated and most of it came into force on January 1, 2018. The amendment led to the introduction of the term “irresponsible hazard” combined with the requirement to exclude such hazards. In the course of the amendment, a new maternity protection committee was set up to develop "practical rules" for the implementation of maternity protection. In addition to experts and supervisory authorities, the committee also includes representatives of social partners, namely the BDA , the German District Association , ver.di , DGB , the University Rectors' Conference and the fzs .

literature

  • Bettina Graue: Maternity Protection Act. Basic commentary on the MuSchG . 2nd, revised edition. Bund-Verlag, Frankfurt am Main 2009, ISBN 978-3-7663-3920-1 .

Web links

Individual evidence

  1. ↑ Ordinance on the protection of mothers at work (MuSchArbV) (repealed in 2018)
  2. ↑ Maternity Protection Guideline Ordinance - MuSchRiV of April 15, 1997 (BArbBl. I 1997 p. 782)
  3. ↑ BAG, judgment of 23 October 1991 - 7 AZR 56/91 = NZA 1992, 925
  4. ↑ Scientific services of the German Bundestag : Protection against dismissal in the context of maternity leave in Germany Status as of April 23, 2015, WD 6 - 3000 - 065/15
  5. ↑ BfbA: Risk Assessment Maternity Protection , accessed on March 1, 2018.
  6. ↑ See collection of sources on the history of German social policy 1867 to 1914 , Section I: From the time when the Reich was founded to the Imperial Social Message (1867–1881), Volume 3: Workers' protection, edited by Wolfgang Ayaß , Stuttgart / Jena / New York 1996, p 39, 49, 192, 256, 259, 262, 286, 344, 394, 417, 444, 475, 514, 538, 553, 575, 607.
  7. ↑ Grete Schmalz: Statutory maternity leave yesterday and today 1950
  8. ↑ Karin Hauser: The beginnings of maternity insurance. Germany and Switzerland in comparison , Chronos Verlag, Zurich 2004. Review by Wolfgang Ayaß
  9. ↑ RGBl. I p. 184
  10. ↑ BVerfG, decision of November 13, 1979 - 1 BvL 24/77, 19/78 and 38/79 margin no. 7th
  11. ↑ RGBl. I p. 321
  12. ↑ BGBl. 1952 I p. 69
  13. ↑ BGBl. 1965 I p. 912
  14. ↑ Compliance costs in the area of ​​the Maternity Protection Act (MuSchG) June 2013
  15. ^ Shaping Germany's future coalition agreement between the CDU, CSU and SPD of December 16, 2013, p. 72
  16. ^ Sozialverband Deutschland SoVD: Statement on the coalition agreement between CDU, CSU and SPD for the 18th legislative period “Shaping Germany's Future” from December 16, 2013. January 17, 2014, p. 16
  17. ↑ United service union ver.di: Carefully developing maternity protection, accessed on May 15, 2016
  18. ↑ Family Association of Catholics : Light and Shadow for Families - Family Association evaluates the coalition agreement December 17, 2013
  19. ^ Legal reform: dispute over maternity protection for schoolgirls. Spiegel online, March 14, 2016, accessed March 19, 2016 .
  20. ↑ Process flow with drafts, justifications and advice on the law on the new regulation of maternity protection law in the DIP
  21. ↑ Text and changes by the law on the new regulation of maternity protection law
  22. ↑ Rainer Dörr, Jana Popritzki: 33. Munich hazardous and safety days - little progress without government. In: Hazardous substances - cleanliness. Air . 78, No. 1/2, 2018, ISSN  0949-8036 , pp. 27-30.
  23. ^ Committee on Maternity Protection (Office): Federal Office for Family and Civil Society Tasks. Retrieved June 18, 2019 .
  24. ^ Committee for Maternity Protection (Office): Federal Office for Family and Civil Society Tasks: List of the members of the Committee for Maternity Protection. Retrieved June 18, 2019 .