On 01.01.2018 the Maternity Protection Act was modified, so that the new § 12 " Prohibited Activities and Working Conditions for Breastfeeding Women" Maternity Protection Act (MuSchuG) has now come into force.
This results in the so-called "prohibition of employment for breastfeeding mothers". In this article we explain the effects of the Breastfeeding Employment Act on post-maternity income and the special features to be taken into account in these constellations when applying for parental leave and parental allowance:
The MuSchG knows different types of employment prohibition, in particular
Every employment ban prohibits the mother from working while at the same time compensating for the wage. The amount of the remuneration for the prohibition of employment for breastfeeding corresponds to the average salary of the last three calendar months before the beginning of the pregnancy, see Article 18 MuSchG.
The employer issues the employment ban due to breastfeeding as soon as the mother indicates that she is ready to work but at the same time informs that she is breastfeeding. The latter is usually evidenced by an informal breastfeeding certificate from the doctor/midwife.
However, mothers only receive the Breastfeeding Ordinance if their workplace includes inadmissible activities or working conditions within the meaning of § 12 MuSchuG. The following professions are particularly affected:
More fields of activity are also affected. The law regards the following activities and working conditions as inadmissible:
The first impermissible activity listed is exposure to hazardous substances. The list in Section 12 para. 1 sentence 2 MuSchuG is not exhaustive and is limited to those hazardous substances which specifically lead to an irresponsible risk to the nursing woman or her child. These include, for example, lead or lead derivatives, insofar as there is a risk that they will be absorbed by the human body (Section 12 para. 1 sentence 2 no. 2 MuSchuG)
The legislator considers a working environment for breastfeeding mothers to be excluded if they come or may come into contact with bio-substances of risk groups 2, 3 or 4 within the meaning of § 3 of the German Ordinance on Biological Substances. However, if the mother can prove that she has sufficient immune protection, the risk is considered excluded.
Physical agents in the sense of the law are working environments in which one is inevitably exposed to ionizing and non-ionizing radiation because they can have a not inconsiderable effect on lactation.
Although a working environment can certainly subjectively very often be perceived as "stressful", the legislator aims with this standard particularly at activities in which the mother either works
In addition to the above-mentioned features, the legislator classifies the following activities in particular as inadmissible:
First and foremost, it is the employer's duty to examine a possible employment ban within the scope of his duty of care (occupational health and safety). This applies in principle to any form of prohibition of employment.
If the employer has a different legal opinion than the mother in the Breastfeeding Supervision Ordinance, the mother will only be able to assert her rights under the Maternity Protection Act with legal assistance, for better or worse. The breastfeeding certificate from the gynecologist or midwife alone is not sufficient to obtain a ban on employment for breastfeeding, as it only certifies that the mother is currently breastfeeding.
Talk to your employer. If available, ask your colleagues responsible for occupational health and safety to take part in the discussion. Point out that the employer is reimbursed 100% of the prohibition of employment remuneration by the health insurance fund under the pay-as-you-go system and is therefore not financially burdened. It can be helpful to have constructive suggestions as to how your absence from the company can be well compensated for.
This question should be easy to be answered:
As long as you can prove that you are breastfeeding and that the risk in your job is still present.
Health insurance companies, public authorities and sometimes employers are wrongly assuming that the ban on employment for breastfeeding is limited to the first year of the child's life. In some cases, the health insurance companies are therefore no longer prepared to reimburse the prohibition of employment from the 13th month of life, which is why the employer would be left with the costs.
However, § 7 of the MuSchuG, which is frequently used in this context, regulates the release of the mother on account of breastfeeding (for example, the granting of breaks for breastfeeding/pumping out), which is limited until the child is 12 months old.
However, § 12 MuSchuG explicitly deals with health protection and this is not limited in time. In case of doubt, the employer must assert the reimbursement claims in court against the health insurance company (§ 18 MuSchuG in conjunction with § 1 para. 2 no. 2 AAG).
This very issue has now been the subject of a court case. The Social Court of Frankfurt (case number: S 34 KR 2391/20 ER) has decided, that an employee who continues to breastfeed her child beyond the age of one and therefore does not work, is in any case not entitled to maternity protection payments, if there is no medically certified prohibition of employment for the breastfeeding period.
The employer runs a dental practice for aesthetic dentistry in Frankfurt am Main. He is claiming reimbursement from the statutory health insurance fund of his employed female dentist of almost €200,000 for the payment of a monthly maternity pay of almost €25,000 since March 2020, as his employee continues to breastfeed her child, born in March 2019, beyond the age of one and is therefore not allowed to be employed. The health insurance company refused to reimburse the employee because the Maternity Protection Act provides for protection of the breastfeeding woman by granting breaks from breastfeeding only within the first twelve months after the birth.
In the opinion of the Social Court, there was no evidence of a ban on employment during the breastfeeding period. The employee had not been able to submit a medical certificate on the specific extent of breastfeeding and any health risks arising from her work as a dentist. Even with the affidavit requested by the Social Court, she had not been able to substantiate any specific breastfeeding times during her working hours, especially since her child was cared for in a daycare center during the day. The applicant had not been able to prove that a reorganization of the working conditions to avoid health risks to his employee was not possible or was unreasonable due to disproportionate effort. Why an employer accepts the non-performance of the contractually owed work performance with simultaneous continued payment of such a high remuneration without further ado was not clear to the Social Court in any way.
This decision deals with an individual case and is therefore not readily applicable by analogy to all affected cases. It is clear from the reasons for the decision that the mothers should by all means provide a medical certificate and concrete evidence of breastfeeding (possibly with confirmation from a midwife?), at least when their baby turned one year. In addition, it can be counterproductive to place the child in outside care during the breastfeeding ban. The employer should keep a good record of the risk assessment and also be able to present (record) a use assessment of the employee at other workplaces. This effort should probably be done on a regular basis.
The full text publication of the decision can be found here: https://sozialgerichtsbarkeit.de/sgb/esgb/show.php?modul=esgb&id=214787. We currently do not know whether an appeal has been filed against the decision.
Parental leave is the legal entitlement of employees vis-à-vis their employer to be released from the obligation to work in favour of child care and upbringing.
In the case of a lactation contract, the employer is informed of the willingness to return to work after maternity leave, and the employer therefore issues a ban on employment for the benefit of health protection due to breastfeeding. This ban applies as long as the mother is breastfeeding and the "danger" exists.
For this reason, no parental leave is applied for in the case of a breastfeeding employer.
It becomes difficult if the mother wants to take parental leave after the end of breastfeeding. It is in the nature of things that the end of breastfeeding cannot usually be "planned/determined". This makes it almost impossible to comply with the 7-week period of the Parental Leave Act.
The solution here is close and at best positive communication with the employer. If the employer agrees to the parental leave application, there is no need for a 7-week period.
Example from our consulting practice:
A dentist would like to breastfeed until she is 18 months old and agrees with her employer after the birth that she would like to start working again after her second birthday. She receives a style employment ban and proves it monthly by a certificate from the gynecologist.
Now her child breast-feeds herself at the age of 14 months. She contacts her employer and asks him to take parental leave at the earliest possible date. The employer certifies/grants her parental leave from the time she takes it until she reaches the age of two. The 7 week period did not have to be observed because the employer agreed and an agreement was reached.
Note: Periods of maternity leave count as parental leave. So if you want to take parental leave as long as possible according to the Breastfeeding Ordinance, you usually do not have 36 months at your disposal but have to deduct the at least 8 weeks for maternity leave after the birth from the 36 months.
In the law on parental allowance, the nursing contract is considered as gainful employment. Anyone who worked more than 30 hours a week before maternity leave and is now receiving a lactation allowance on this basis is not entitled to parental benefit.
Anyone who receives his or her nursing contract on the basis of part-time work of less than 30 hours a week is therefore entitled to parental allowance, but must expect noticeable reductions (possibly to the minimum amount: €300 in the base, or €150 in the Parental AllowancePlus allowance). This leaves two options:
The parental allowance can be applied for after the Breastfeeding Ordinance. However, it must be noted that basic parental allowance can only be applied for up to and including the month of 14. After that, i.e. from month of life 15 onwards, you can only apply for Parental AllowancePlus.
From the age of 15 months there must be no gap in parental benefits. This means that you must start at the latest by the 15th month of life.
Unless the partner jumps in the gaps or you agree a part-time arrangement from LM 15, so that you are entitled to parental allowance in the meantime despite breastfeeding BV's.
Again and again we experience practical cases in which the mother takes the breastfeeding BV and the father goes on parental leave and receives basic parental allowance.
Depending on the level of the pre- and post-natal family income, this option can be very useful.
Of course, a mixture of the two variants can also be useful if, for example, the father can/wants to take parental leave for a maximum of 6 months.
Note: The regulations to the Breastfeeding-BV are still relatively young in terms of legal history. As a result, there is a lack of experience in the practical application by employers, health insurance companies and parental benefit offices. Each case is unique and can become very complex in places. Therefore, we recommend that you seek professional support within the framework of our parental benefit advice.
The prohibition to work while breastfeeding is a legal employment ban for breastfeeding mothers who are not allowed to work while breastfeeding due to health protection.
The gynaecologist or midwife will issue an informal certificate for the employer, which must be renewed regularly.
As long as the mother is breastfeeding and health protection at work cannot be guaranteed. The MuSchuG does not provide for a limitation to 12 months.
In terms of parental benefit law, the nursing care contract is considered to be gainful employment. If you receive a lactation benefit that corresponds to a working week of more than 30 hours, you are not entitled to parental benefit. If you are paid less than 30 hours per week, you are entitled to a proportionately reduced parental allowance. Please check whether you can arrange your parental allowance in order not to lose any money.
The parental allowance rules can be complicated. Make it easy and, like many other parents, use our services to get the most out of your parental allowance. We offer you many possibilities to make your application for parental leave as easy and uncomplicated as possible: