This blog post follows another one on the current Covid-19 measures and challenges for employers across Europe.
Employers should also be aware that the recent increase in Covid-19 cases poses a significant risk for vulnerable groups and in particular pregnant employees. We explore below the approach taken by governments and employers in some jurisdictions. The common denominator is that the employer has a duty to carry out a risk assessment according to specific rules set out in local legislation and regulation and to take measures to prevent any risk. Where this is not possible, the pregnant employee’s employment can be suspended, by applying different types of leave, depending on the jurisdiction.
Employers in the United Kingdom have additional duties at law to protect the health and safety of pregnant employees, including assessing the workplace risks posed, altering the pregnant employee’s working conditions (or hours) to avoid any significant risk, or offering suitable alternative work on terms that are not substantially less favourable. If (assuming there is an identified significant risk) suitable alternative work isn’t available and an adjustment to working conditions such as working from home isn’t possible, the pregnant employee should be suspended on full pay.
Prior to April this year, the UK Health and Safety Executive had in place advice for pregnant employees specifically in relation to Covid-19 risks. Following the publication of the UK Health Security Agency’s guidance on respiratory infections (for more detail see our earlier blog post), the Covid-19 advice for pregnant employees was withdrawn. From 1 April, employers are no longer required to explicitly consider Covid-19 in their risk assessments.
It is therefore possible that UK employers could reasonably determine that, in the current Covid-19 climate, the workplace is sufficiently safe to require pregnant employees to return to the office, provided that their individual risk assessments do not show otherwise. However, there are still possible risks if employers unreasonably insist that pregnant employees return to the office. These include discrimination risks and, if employers take disciplinary action for a refusal to return to the office due to concerns about health and safety, claims for automatically unfair dismissal (for being subjected to detriment and/or being dismissed for raising health and safety concerns). As a result, employers should continue to be mindful of their legal obligations when it comes to individuals with particular protected characteristics.
In Austria, Germany and Italy, irrespective of whether Covid-19 measures are still in force or not, special rules of the local Maternity Protection Acts apply to pregnant employees. The employer is required to assess the workplace pregnancy related risks of a pregnant employee (including the risks due to a Covid-19 infection) and to design the working conditions in such a way that risks to a pregnant employee are avoided as far as possible. In Germany, where this is not possible, the employer should take protective measures (including the redesign or reorganisation of working conditions, a transfer to another suitable and reasonable workplace or – as a last option – prohibiting employment). Whereas in Austria, where no other options are possible, the pregnant employee must be released from work with continued remuneration (‘special leave’). The provisions on Covid-19 related special leave entitlement expired on 30 June 2022. Currently they apply only to women who became pregnant before 30 June. However, they may be extended due to the ongoing pandemic. In Italy, if none of the above measures are practicable (including remote working), pregnant employees have a right to take an early maternity leave during their pregnancy.
The decision on protective measures is usually taken by the employer and the company doctor or an occupational safety expert. In Germany, many experts assess that the workplace risk for pregnant employees is often too high, and they should work from home where possible. It is important to note that when assessing the risk situation, according to the well-defined criteria in the Maternity Protection Act, individual circumstances must also be considered (e.g., open space or individual office, home-working, ventilation, personal contact required at work and more).
In order to avoid liability risks, employers in Germany often issue a partial or complete ban on employment for those who cannot work from home. Yet, many pregnant employees insist on their right to come to the contractually agreed workplace. This may likely result in court disputes, dealing with the question of whether other protective measures could be taken in order to satisfy this request. One option that is already excluded, according to the recommendations of the federal states, is wearing a FFP2 mask. Such tight-fitting respirators can only be used to a limited extent for pregnant women. In addition, the Maternity Protection Act prohibits activities in which pregnant women have to wear protective equipment (including FFP2 and comparable masks) that cause physical stress.
In France, pregnant women in their third trimester who perform a job in which they could be exposed to a high virus density and who cannot work from home or be effectively protected from exposure to Covid-19, are considered vulnerable people. As such, after receiving an isolation certificate from their doctor, they can be placed on partial activity.