Pregnancy and Breast-feeding
The employer’s health, safety and welfare obligations in respect of pregnant employees are subject to pregnancy being notified. Where an employee notifies her pregnancy, certain obligations apply. A medical certificate is desirable. The obligations are in addition to those that apply under employment and other health safety and welfare at work legislation.
A risk assessment, formal or informal (depending on the circumstances), is necessary. The employer must assess any risk to health or safety and any possible effect on pregnancy or breastfeeding, resulting from any activity at the employer’s workplace.
The risks may involve the exposure to any process, agent, or working conditions. Certain agents and substances pose a particular risk. Pregnancy may interfere with a woman’s ability to work in a standing position, handle manual loads and work in certain confined areas and positions.
Employers must provide the employee or the safety representatives with the relevant information the risk assessment, and the measures to be taken.
Maternity Associated Risks
The legislation sets out the criteria which employers must take into account, in undertaking the assessment. Risks associated with the radiation, including electromagnetic radiation, generated by VDUs are required to be considered. It appears that modern VDUs do not represent a significant risk to pregnant women, in that the levels of radiation are relatively low.
The regulations list a range of chemical, biological and physical risks. They list certain agents and conditions which pose a particular risk to pregnant employees and which may require the requisite adjustments. The lists are not exhaustive but are indicative only. Certain risks are listed with particular reference to breastfeeding.
Certain substances and process are completely inconsistent with pregnancy. A wide range of risks is identified as prospectively impacting on a pregnant, postnatal or breastfeeding woman. They include certain biological agents, chemical agents, certain substances, processes and working conditions, noise and certain radiation.
In consultation with the Member States and assisted by the Advisory Committee on Safety, Hygiene and Health Protection at Work, the EU Commission has drawn up guidelines on the assessment of the chemical, physical and biological agents and industrial processes considered dangerous for the health and safety of female workers in the above categories. The guidelines also cover physical movements and postures, mental and physical fatigue and other types of physical and mental stress.
These guidelines are the basis for risk evaluation. For all activities liable to involve a risk, the employer or the health and safety service must determine the nature, degree and duration of exposure in order to evaluate the risks and decide what measures should be taken. Workers are to be notified of the results and of measures involving health and safety at work.
The employer’s obligations require both the assessment of the risk and the making and implementation of any necessary adjustments. The employer is obliged to take preventative and protective measures to ensure the health, safety and welfare of pregnant employees and to avoid the possible risks.
The regulations and guidelines specify measures in connection with a range of different activities and exposures. Where possible, the risk should be removed. Where it is not practicable to ensure the safety, health, and welfare of the employee through protective or preventative measures, the employer must adjust the working conditions temporarily so that the exposure to the risk is avoided. Consideration should be given to removing the employee from the risk or removing the risk.
The employer must ensure that the employee is not required to perform duties, for which the assessment reveals a risk. If the temporary adjustment to work conditions is not technically feasible or cannot be required on other substantial grounds, the employer must where possible, provide the employee with other work, which does not entail the risk.
The workplace regulations oblige employers to ensure that pregnant, postnatal and breastfeeding employees are able to lie down in appropriate conditions.. Privacy is required for breastfeeding, expressing and storing milk.
Withdrawal from Certain Work
The employer must ensure that the employee does not undertake work, where there is a risk of any adverse effect during pregnancy or breastfeeding. Withdrawal is required where the risk assessment so indicates.
Other measures may be taken to mitigate the risks, provided that they are feasible. It may be possible to mitigate the risks by substitution. This may involve a temporary adjustment in working conditions.
Necessary protective action may, but will not necessarily include withdrawal from certain work or a full cessation of work. Where adjustments or alternative work is not feasible, the employer should assist the employee in obtaining health and safety leave under the maternity protection legislation.
Maternity legislation provides for extended leave where an employee cannot be reasonably required to perform the work during the requisite period. During the first three weeks of leave, the employer is required to pay. After that, the employee receives benefits similar to the benefit level for occupational injuries.
Specific Risk and Hazards
There are certain recognised hazards specific to pregnancy and breastfeeding. The HSA Guide contains a list of agents, processes, and working conditions entailing risks to pregnant, postnatal, and breastfeeding employees. This is without prejudice to the general obligation to undertake a risk assessment. Other employments or activities may entail risk.
Pregnant workers may under no circumstances be obliged to perform duties for which the assessment has revealed a risk of exposure to the agents and working conditions listed in Annex II, Section A, and, in the case of workers who are breastfeeding, to the agents and working conditions listed in Annex II, Section B in the Directive
Exposure of the workers in question to the above risks is to be avoided by provisionally adjusting their working conditions or their working hours. Where such adjustment is not technically and/or objectively feasible, or cannot reasonably be required on duly substantiated grounds, the employer shall take the necessary measures to move the worker concerned to another job. Where a transfer to another activity is not feasible, the workers in question must be granted leave for the whole of the period considered necessary to protect their safety and health.
EU Directives require the necessary measures to ensure that the workers concerned are not obliged to perform night work during their pregnancy and for a period following childbirth, where a medical certificate certifies that there is a risk to health or safety. They must be transferred to daytime work where possible, or otherwise by excusing them from work or extending maternity leave.
Where an employee who is pregnant undertakes night work, and a doctor certifies that it is necessary for her health and safety that she should not be so required to work, during pregnancy (and the period afterwards), the employer must not require her to do night work. The employer must transfer her to daytime work, grant leave or extended maternity leave, where this is not feasible.
EU Directives require maternity leave of an uninterrupted period of at least 14 weeks before and/or after delivery, two of which must occur before the delivery. Pregnant workers must have the right to take leave from work without loss of pay to enable them to attend ante-natal examinations if such examinations take place during working hours.
Women may not be dismissed for reasons related to their condition for the period from the beginning of their pregnancy to the end of the period of leave from work. In the event of dismissal, the employer must give good grounds in writing. Measures should be taken to protect such workers from the consequences of unlawful dismissal.
Employment rights relating to the employment contract, including the maintenance of payment to, and/or entitlement to an adequate allowance for the pregnant workers, workers who have recently given birth and workers who are breastfeeding are safeguarded
The pay and allowance are deemed adequate under the Directive if it guarantees an income at least equivalent to that which the worker concerned would receive in the event of a break in her activities on grounds connected with her state of health, subject to any ceiling laid down under national legislation.
This right to pay or to an allowance may be subject to certain conditions, though not the condition that a period of work of more than 12 months should have immediately preceded the presumed date of delivery.
References and Sources
Safety, Health and Welfare and at Work Law in Ireland 2nd Ed 2008 Byrne Ch 3o
Safety & Health Acts Consolidated & Annotated 2013 Byrne
Health, Safety & Welfare Law in Ireland 2012 Kinsella Ch. 3
Health & Safety: Law and practice 2007 Shannon
Health & Safety at Work 1998 Stranks Ch.6
Civil Liability for Industrial Accidents 1993 While
The Health and Safety Authority www.hsa.ie
Health and Safety Executive (UK) www.hse.gov.uk
Tolleys Health and safety at work, 2017 29th ed Bamber,
Corporate liability: work related deaths and criminal prosecutions 3rd ed. Author FORLIN, G.
Health and safety at work: European and comparative perspective Author ALES, E., ed.
Health and Safety Law 5th Ed 2005 Stranks
Principles of Health and Safety at Work (8th ed) Holt, Allan St. John; Allen, Jim;
The Law of Health and Safety at Work 2014/15 (23rd ed) Moore, Rachel; Winter, Hazel;
Safety, Health and Welfare at Work Act 2005
Safety, Health and Welfare at Work (General Application) (Amendment) (No. 3) Regulations 2016 (S.I. No. 370 of 2016)
Safety, Health and Welfare at Work (General Application) (Amendment) (No. 2) Regulations 2016 (S.I. No. 70 of 2016)
Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2016 (S.I. No. 36 of 2016)
Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2012 (S.I. No. 445 of 2012)
Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2010 (S.I. No. 176 of 2010)
Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2007 (S.I. No. 732 of 2007)
Safety, Health and Welfare at Work (General Application) Regulations 2007 (S.I. No. 299 of 2007)