The Maternity Protection Act (MuSchG) contains, among other things, rules on maternity protection and maternity pay. Maternity protection is intended to protect pregnant and breastfeeding women who are in an employment relationship. Both expectant mothers and their children are to be protected from dangers, excessive demands and damage to health at the workplace. It also protects pregnant or breastfeeding workers from financial losses and job losses.
In the 6 weeks prior to the presumed day of delivery, expectant mothers are generally prohibited from employment under § 3 (2) of the MuSchG. However, this employment ban is not mandatory, so that the employee can dispense with it. The waiver can be revoked at any time.
In the first 8 weeks after childbirth, mothers are absolutely prohibited from employment, which cannot be waived either (§ 6 (1) MuSchG). In the case of premature and multiple births, maternity protection is extended to 12 weeks.
Irrespective of these general employment prohibitions, there may be an individual employment prohibition for expectant mothers from the beginning to the end of the pregnancy, insofar as according to a medical certificate the life or health of the mother or child is endangered if the employment continues (§ 3 (1) MuSchG).
In addition, § 4 MuSchG regulates which activities expectant mothers may not be employed for. This is the case if the work involves heavy physical work, piecework or work that exposes them to harmful emissions. After birth, the mother’s ability to perform must be taken into consideration if she is not fully capable according to a medical certificate. In addition, there are some prohibitions on breastfeeding mothers. In § 8 MuSchG, a special statutory provision on overtime, night work and Sunday work for expectant and nursing mothers must be observed.
Special protection against dismissal
In addition, § 17 MuSchG governs special protection against dismissal. Termination is inadmissible for a woman during pregnancy and up to 4 months after delivery. However, the employer must be aware of the pregnancy or childbirth at the time of termination. If the employer is not aware of this, a termination is still invalid if the pregnancy is notified within two weeks of receipt of the termination. Exceeding the deadline is harmless if it is based on a reason for which the woman is not responsible and the notification is made without delay. In special cases, the state authority responsible for occupational health and safety may exceptionally declare the dismissal admissible at the employer’s request.
In the event of violations, an action for protection against dismissal should be filed within three weeks of receipt of the notice of termination.
During the general employment prohibitions before and after childbirth, female employees with statutory health insurance are entitled to maternity pay from their health insurance funds (§ 13 (1) MuSchG). The average daily net wage of the last 3 months is paid, but not more than EUR 13 per day. The employer must compensate the difference to the last salary paid with a subsidy (§ 14 MuSchG). In the event of an individual employment ban, the employees are entitled to full remuneration from the employer (§ 11 MuSchG).
The entitlement to parental leave and parental allowance must be distinguished from maternity leave and maternity pay.