New law on protection of pregnant workers

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A new law concerning pregnant workers, and new and breast-feeding mothers, was published in Luxembourg in October 2001. Among other measures, it improves their protection against dismissal in the event of gross misconduct, and abolishes the previous outright ban on night working.

A law of 1 August 2001 (final version published on 9 October 2001) makes a number of changes to the previous law of 3 July 1975 governing the protection of pregnant workers, and new and breast-feeding mothers. Below we set out the main provisions of the maternity protection legislation, as amended. It should also be noted that while measures contained in the previous law applied only to employees and apprentices, the new law also brings within its scope pupils and students working during academic holidays.

Stronger protection against dismissal

The existing system of protection in the event of termination of contract with statutory notice is unchanged by the new law. A pregnant women who receives a letter of dismissal giving the statutory notice has eight days to prove that she is pregnant by sending a medical certificate by registered mail: this will make her dismissal null and void. If an employer ignores these legal provisions, an employed woman may, within 15 days, call on the president of the Labour Tribunal (Tribunal du travail) to make an emergency ruling, declaring the dismissal null and void and ordering that she be allowed to remain in employment or be reinstated.

The system of protection in the event of termination of contract for gross misconduct (faute grave) is strengthened. Contrary to a widely held view, it is indeed possible to terminate the contract of a pregnant woman for gross misconduct. However, the new law introduces a special procedure that is similar to the protection provided when a member of the employee committee/works council (délégation du personnel) is dismissed for gross misconduct.

Undert the new system, if the employer believes that a pregnant employee is guilty of gross misconduct, it must dismiss her immediately; the employee continues to be a member of the workforce, but she has no access to company premises, and the employer is no longer obliged to continue paying her salary. At the same time, the employer must go to the Labour Tribunal and ask this court to terminate the contract. If the Labour Tribunal refuses to accede to this request, the dismissal is annulled and the effects are cancelled.

As the employer is no longer obliged to continue paying a salary while this procedure is taking its course, the employed woman may, within 15 days, approach the president of the Labour Tribunal, who will decide whether pay should, or should not, continue to be paid pending a final resolution of the dispute.

If an employer fails to abide by the dismissal procedure, the president of the Labour Tribunal may order the employee to be reinstated by the company.

Stronger health and safety protection

The law specifies certain jobs that are deemed dangerous for the health and safety of women who are pregnant or breast-feeding. These jobs come under two headings:

• tasks such as lifting objects weighing more than five kilos, jobs in which there is a danger of falling or slipping, and jobs that are performed in a crouching or permanently bending position. As far as this category of jobs is concerned, protective measures must be taken only if the company's medical adviser decides that there is a risk to health. The employer must first try to eliminate the risk to health by making alterations to the job. If that is not possible, it must move the woman concerned to another job. If no suitable job exists, the employer must give the employee an exemption from work; and

• jobs that involve women coming into contact with chemical substances such as lead and its derivatives, or biological agents such as toxoplasma or rubella. A simple risk of exposure to jobs in this category is enough to trigger a protective mechanism whereby the woman is transferred to another job or, if none exists, granted an exemption from work.

Maternity leave

The broad outlines of the law on maternity leave have been retained.

Ante-natal leave commences eight weeks before the expected date of confinement as stated on the medical certificate. If the woman gives birth before the expected date of confinement indicated on the medical certificate, the amount of ante-natal leave not taken is added to the post-natal leave. If the woman gives birth after the expected date, the ante-natal leave is extended as far as the date on which the birth actually takes place, but post-natal leave may not be reduced.

Post-natal leave lasts for eight weeks for the birth of a single child, and for 12 weeks in the event of a premature birth or the birth of more than one child, and if the mother is breast-feeding.

During ante-natal and post-natal leave, the woman is entitled to a cash benefit equal to the cash benefit payable in the event of sickness; it is borne by the state. The employer is obliged to keep the jobs of women taking maternity leave, or equivalent jobs, open for them.

When the woman's maternity leave runs out, she may ask to go on unpaid special childcare leave. In these circumstances, she may also refuse to return to work without having received prior notice. If a woman on unpaid leave asks to return to work, the employer is obliged, for a period of one year, to give priority to employing her on jobs that her skills permit her to perform and, if she is re-employed, to give her all the benefits to which she was entitled when she left.

Working hours

Ban on overtime

An overtime ban for pregnant women, and new and breast-feeding mothers, was contained in the 1975 law and is retained.

Night working

Under the 1975 law, there was a simple ban on employing a woman who is pregnant, or who is a new or breast-feeding mother, between 22.00 and 06.00.

Under the new law, a pregnant woman is only exempt from night work if she expressly asks her employer if there is a risk to her health and safety. This risk shall be examined by the company's medical adviser, whom the employer must consult. If a risk is confirmed, the employer is obliged to transfer the woman to a day job with no loss of pay.

When no such transfer is possible, the company's medical adviser will prescribe an exemption from work. During this period, the worker is no longer paid by the employer, but receives a maternity allowance from the sickness fund.

The same system applies to women who are breast-feeding until their child's first birthday.

If there is no risk to health, the woman may continue to work at night.

Breast-feeding time

The employer must give a woman who is breast-feeding, if she so requests, breast-feeding time paid at the normal rate. This consists of two periods of 45 minutes each at the beginning and the end of normal working hours, or a single period of 90 minutes when the working day is broken by a break of less than one hour.

Trial period

The law of 1 August 2001 puts an end once and for all to an old legal controversy concerning workers who find themselves pregnant during a trial period.

When an employee is working under a contract of indefinite length that includes a trial period, the clause relating to the trial period is suspended from the day that the employer is handed the medical certificate establishing that she is pregnant to the point when maternity leave commences. The amount of the trial period not worked is resumed at the end of the period during which the woman is covered by the special maternity protection against dismissed.

Commentary

The law of 1 August 2001 has the advantage of resolving a number of issues that regularly come before Labour Tribunals, and which relate to problems that arise during the trial period, or to the impossibility of transferring pregnant or breast-feeding staff because there are no suitable jobs to go to. The law also has the advantage of giving pregnant workers better protection against unfair dismissal.

However, the author of this article does not share the view of European 'mainstreaming' specialists who argued for the previous ban on night working to be abolished. This is, in the author's view, clearly a move in the wrong direction. (Marc Feyereisen)