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Prohibition of employment due to Breastfeeding and parental allowance

09.07.2020

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:

An overview of the most important facts about the prohibition of employment due to Breastfeeding and parental allowance
  • ✔ Mothers who are breastfeeding their child and who are not allowed to work for health protection reasons receive a prohibition of employment due to Breastfeeding
  • ✔ During the nursing period you continue to receive the full pre-maternity wage
  • ✔ The prohibition of employment due to Breastfeeding lasts as long as the mother is demonstrably breastfeeding and the risk at work is still present
  • ✔ Good communication and planning with the employer is extremely important here
  • ✔ Parental leave and parental benefits should be carefully planned
The regulations on parental allowance can be very complicated. Get professional advice. Here you can access our parental benefit advice service.

What is a nursing employment ban?

The MuSchG knows different types of employment prohibition, in particular

  • individual employment ban (usually prescribed by a doctor during pregnancy),
  • statutory prohibition of employment during the maternity leave periods,
  • legal employment ban for nursing mothers with special working conditions.

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.

How do I obtain a prohibition of employment for breastfeeding?

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:

  • Dentists
  • Veterinarians
  • Pilots/Flight attendants

More fields of activity are also affected. The law regards the following activities and working conditions as inadmissible:

exposed to hazardous substancest

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)

Exposed to biological substances

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 effects"

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.

"stressful working environment"

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 rooms with an overpressure in sense of § 2 of the compressed air regulation or
  • in underground mining.

Other

In addition to the above-mentioned features, the legislator classifies the following activities in particular as inadmissible:

  • piecework or other work where a higher remuneration can be achieved by increasing the pace of work
  • Hard work
  • clocked work at a prescribed work rate if the nature of the work or the work rate poses an irresponsible risk to the nursing woman or her child.

How do I find out if I am entitled to a prohibition of employment due to breastfeeding?

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.

Tip:
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.

How long does the breastfeeding contract last?

This question is easy to answer:
As long as you can prove that you are breastfeeding and that the risk in your job is still present.

Note:
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).

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How do I apply for parental leave if I am going to the nursing BV?

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.

How do I apply for parental allowance if I am prohibited to work while breastfeeding?

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:

Take parental allowance according to the Breastfeeding-BV

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.

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Note: 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.

The partner takes over the main focus

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.

FAQ - Breastfeeding insurance and parental allowance

What is prohibtion of work due to breast-feeding?

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.

How do I prove that I am breast-feeding?

The gynaecologist or midwife will issue an informal certificate for the employer, which must be renewed regularly.

How long does the prohibtion of work due to breast-feeding last?

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.

Can I receive parental allowance during the nursing period?

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.

Too complicated? - Our tip

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:

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