Maternity protection: special protection during pregnancy and after the birth



Pregnant applicants have the so-called right to lie in job interviews. The question of pregnancy in job interviews is not permitted. If it is asked anyway, the mother-to-be may lie without any consequences under labor law or even criminal law being drawn. 

Special protection against dismissal

The special protection against dismissal pursuant to Section 17 MuSchG also applies to mothers-to-be in current employment. According to this, a termination that is prepared and issued after the start of the pregnancy is ineffective. The protection against dismissal continues until the end of four months after the birth and also applies during the probationary period.

Notification obligation

However, there are not only rights in pregnancy. In order for the employer to be able to comply with the provisions laid down in the Maternity Protection Act, he must also learn about the pregnancy. According to § 15 MuSchG, a pregnant woman should inform her employer of her pregnancy and the expected day of delivery as soon as she knows that she is pregnant.

The protection against dismissal also applies if the employer is subsequently notified in good time.

Dismissal protection suit

If the employer has given notice of dismissal despite the prohibition of dismissal, action is still required. Even against an ineffective termination must be within three weeks Dismissal protection suit collected so that rights can be enforced during pregnancy. Otherwise the legal fiction of effectiveness applies.

Leave for medical examinations

In addition, the pregnant woman must be released from her employer for medical examinations while continuing to pay the remuneration, without having to go to work.

Corona pandemic

The corona pandemic is a particular burden for pregnant women. There is currently no indication that pregnant women or their unborn child are particularly at risk. However, transmission to the unborn child cannot be ruled out, as the Robert Koch Institute (RKI) has announced. So far there has been no recommendation that pregnant women should be banned from employment. However, depending on the federal state, there are regulations for pregnant women in certain occupational groups or when contact is prohibited. In Bavaria, for example, there is a general occupational ban on all pregnant women in the event of exit restrictions due to the corona pandemic if it is not possible to work from home. 

Home office

There is no legal right to work from home. This always requires an agreement with the employer. A claim can, however, be regulated in the employment contract, collective bargaining agreement or in a works agreement.

Company employment ban

Overtime, night work, work on Sundays and public holidays are prohibited during pregnancy. In addition, the working conditions must be checked for particular hazards and adjusted if necessary. If risk-free working conditions are not guaranteed and these cannot be redesigned, the employee is prohibited from working in the company.

Medical employment ban

This must be distinguished from the medical prohibition of employment, which depends on the state of health of the expectant mother and the unborn child. Only the doctor can assess which occupational activities, to what extent and for what duration can pose a risk. He can issue a partial or absolute ban on employment. If an employment ban has only been issued for certain activities, the employer can employ the pregnant employee in other activities that are not covered by the ban. However, there must be no financial disadvantages for the pregnant woman.

Maternity wage

During a ban on employment, the employer is obliged to pay maternity protection wages. The employer can have his costs reimbursed for the most part by the health insurance company in accordance with the Expenditure Compensation Act in a pay-as-you-go system (U2). According to the common legal opinion of the Federal Ministries for Family, Health and Labor Costs should also be reimbursed for short-time work, since maternity benefits should take precedence over short-time work benefits according to the MuSchG.

The amount of the maternity protection wage is generally based on the average wage for the last three calendar months before the onset of pregnancy. If the employee receives a fixed salary, there are usually no deviations. If, on the other hand, the wage varies from month to month or if, for example, short-time work was ordered in the reference period, the average or usual wage must be calculated and paid. When determining the amount of benefits, times are not taken into account when the pregnant woman did not receive any wages due to absenteeism through no fault of her own. This means that wage cuts that occur as a result of short-time work, absenteeism or other non-negligent work absences must not have a reducing effect on maternity benefits.

It's worth doing the math here! If too little maternity wage is paid, this has further consequences for the amount of maternity and later parental allowance. We are happy to help you with the review to claim your rights during pregnancy.

Maternity leave period

Statutory maternity leave begins six weeks before the calculated delivery date and eight weeks after the birth. In the case of multiple or premature births, the period after the birth is extended to 12 weeks. If the calculated due date is exceeded, the protection period is extended.

Maternity allowance

During this time, the employee is released from work and is entitled to payment of maternity benefit by her statutory health insurance. This maternity allowance is limited to a daily flat rate of currently 13 euros and is therefore often below the actual income of the employee. The employer is therefore legally obliged to make a subsidy equal to the difference between the maternity allowance and the average daily net income of the employee during maternity leave. Since it is a net wage-related compensation benefit, it is worth checking a change of tax class in good time.

For civil servants, maternity protection is included in the maternity and parental leave ordinance (MuSchEltZV) regulated.

Kathrin Roller

Lawyer for labor law in Leipzig

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