Directive 92/85 / EEC (Maternity Protection Directive)

Directive 92/85 / EEC
Title:	Council Directive 92/85 / EEC of 19 October 1992 on the implementation of measures to improve the safety and health protection of pregnant workers, women who have recently given birth and who are breastfeeding at work (tenth individual directive within the meaning of Article 16 (1) of Directive 89/391 / EEC)
Designation: (not official)	Maternity Protection Policy
Scope:	EEA
Legal matter:	Employment Law
Basis:	EEC Treaty , in particular Article 118a
Procedure overview:	European Commission European Parliament IPEX Wiki
Implemented by:	in Germany: Mutterschutzgesetz (MuSchG), Maternity Protection Guideline Ordinance (MuSchRiV)
Reference:	OJ L 348 of 11/28/1992, pp. 1-7
Full text	Consolidated version (not official) basic version
The regulation must have been implemented in national law.
Please note the information on the current version of legal acts of the European Union !

The Directive 92/85 / EEC lays down uniform minimum standards for the protection of health and the improvement of safety of pregnant workers, have recently given birth and breastfeeding established workers. It also concerns maternity leave and discrimination in the workplace.

The directive is the tenth individual directive within the meaning of Article 16 (1) of the framework directive 89/391 / EEC .

Structure and content of the guideline

Section I Objective and Definitions

Article 1 defines the aim of the directive and Article 2 defines the terms “pregnant worker”, “woman who has recently given birth” and “breastfeeding worker” within the meaning of this directive.

Section II General Provisions

Article 3 sets out guidelines, Articles 4 to 7 set out measures to assess and reduce the risk, in particular Article 7 a ban on night work .

Article 8 sets minimum standards for maternity leave : there must be a minimum of 14 weeks without interruption and a compulsory part of two weeks; the total number of weeks and the compulsory portion of the weeks should be “divided between the time before and / or after delivery in accordance with national law and / or practice”. Article 9 grants employees the right to time off for preventive medical examinations during pregnancy and stipulates that this should not result in any loss of wages or salaries if the examinations have to take place during working hours. Article 10 stipulates a prohibition of dismissal during the period from the beginning of pregnancy to the end of maternity leave.

Articles 11 to 15 concern inter alia the legal effects of the directive.

Attachments

Appendices I and II contain lists of agents, procedures and working conditions related to the preceding articles. These are "non-exhaustive" lists; therefore they do not restrict the applicability of the articles of the directive.

Proposal to reform the directive

The European Commission proposed on October 3, 2008 to amend the directive. This proposal was discussed under the co-decision procedure between the European Parliament and the Member States in the Council .

European directives are addressed to the member states, which usually have two years after the enactment to implement the directive into national law. Only if a directive has not been implemented or has not been implemented correctly after the deadline has expired, the directive may U. have a direct effect in employment relationships in the public service (see also the corresponding consideration of the parental leave directive ). In relation to private employers, the directive then acts in such a way that national law must be interpreted in accordance with the directive.

The proposal in detail

The reform proposal provided for the following changes:

• Minimum conditions with regard to health protection and social security for women workers should still be guaranteed, but the reform is now also intended to expressly promote equal treatment for women and men.
• Maternity leave should be extended to 18 weeks, of which six weeks must be taken after childbirth. The women should be free to decide on the timing of the other 12 weeks of vacation, so they would no longer be forced to take a certain part of it before giving birth.
• During maternity leave, 100% of wages should continue to be paid , but it should be possible to limit the amount of sick pay .
• The protection against dismissal should be extended to the effect that it should also be prohibited during maternity leave to prepare a dismissal for the period after maternity leave. Mothers who are terminated within six months of the end of maternity leave should be able to request a written explanation of the reasons for the termination.
• After maternity leave, the worker should be entitled to return to the same or an equivalent job under conditions not less favorable and to any improvement in working conditions that was introduced during her absence and to which she would have been entitled been present.
• Finally, women should be given the right to ask their employer to organize their working hours more flexibly after the end of maternity leave; however, the employer should have the right to refuse the request.
• In the event that a woman can substantiate facts that suggest that she was directly or indirectly discriminated against by measures taken by the employer in connection with her pregnancy and motherhood, the employer should have to prove that he has not violated the principle of equal treatment (reversal of the burden of proof ). A claim for damages resulting from discrimination should not be restricted in amount.

Position of the Council

On the part of the Council, a majority in favor of extending maternity leave became apparent in early 2009. In some cases, however, it was pointed out that fathers also played an important role in family life and that it was therefore not desirable to only allow mothers to extend their leave. Concerns have been expressed about the envisaged possibility of making vacation more flexible. It was feared that the planned measures could ultimately have a negative impact on the situation of women in the labor market. It was also discussed whether health protection, social security and an improved reconciliation of work, private and family life can be achieved in a single guideline.

Statement by the German Federal Council

The German Bundestag also expressed concerns, which, above all, did not consider regulations at European level to be necessary and saw employers too severely affected by the proposed changes.

Further developments

After the attempt to change the Maternity Protection Directive failed, the EU Commission announced its intention to give both parents the right to at least four months of parental leave. Parents should be able to take parental leave until the child is twelve years old.

See also

• Directive 96/34 / EC (Parental Leave Directive)

Web links

• Council Directive 92/85 / EEC of 19 October 1992 on the implementation of measures to improve the safety and health protection of pregnant workers, women who have recently given birth and who are breastfeeding at work (PDF)at EUR-Lex
• Protection of pregnant women, women who have recently given birth and breastfeeding mothers with SCADPlus
• Report on the proposal for a directive of the European Parliament and of the Council amending Council Directive 92/85 / EEC of 19 October 1992 on the implementation of measures to improve the safety and health of pregnant workers, women who have recently given birth and who are breastfeeding on Workplace COM (2008) 0637 - C6-0340 / 2008 - 2008/0193 (COD) , April 23, 2009 (accessed on May 2, 2009)

Individual evidence

1. ↑ COM (2008) 637, 2008/0193 / COD. Proposal for a directive of the European Parliament and of the Council amending Council Directive 92/85 / EEC of 19 October 1992 on the implementation of measures to improve the safety and health protection of pregnant workers, women who have recently given birth and who are breastfeeding at work. European Commission, accessed May 2, 2009 . 
2. ↑ Federal Labor Court, decision of April 2, 1996, Az .: 1 ABR 47/95
3. ↑ Proposal for a directive of the European Parliament and of the Council amending Directive 92/85 / EEC… COM (2008) 637 final; Council doc. 13983/08 (PDF), accessed May 2, 2009
4. ^ Note from the Presidency to the Permanent Representatives Committee (Part 1) / Council (Employment, Social Policy, Health and Consumer Protection). (PDF; 124 kB) Council of the European Union, February 24, 2009, accessed on May 2, 2009 . 
5. ^ Message to the press. 2930th Employment, Social Policy, Health and Consumer Affairs Council. (PDF) March 9, 2009, accessed May 2, 2009 .  P. 20
6. ↑ Bundesrat Drucksache 748/08: Information from the Federal Government. Proposal for a directive of the European Parliament and of the Council amending Directive 92/85 / EEC… COM (2008) 637 final; Council doc. 13983/08. (PDF) Federal Council, October 14, 2008, accessed on May 2, 2009 . 
7. ↑ No Europeanization of maternity leave. (No longer available online.) The Sozialticker eV, archived from the original on December 24, 2008 ; Retrieved March 22, 2009 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.  
8. ^ Preview of the 853rd plenary session of the Federal Council. (No longer available online.) Federal Council, December 16, 2008, formerly in the original ; Retrieved March 22, 2009 .  ( Page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.    See agenda item 47.
9. ↑ European social policy: At least four months parental leave for fathers. FAZ, April 24, 2017, accessed April 28, 2017 . 

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