The COVID-19 pandemic has serious implications for occupational safety and health. The responsibility for implementing adequate occupational health and safety, especially the new occupational health and safety standards related to coronavirus lies with employers. Occupational health and safety also requires employers to take into account maternity protection and the associated specifics for employed pregnant employees. So what do duty of care and occupational health and safety mean for pregnant employees in times of COVID-19? 

Due to the novelty of the virus in pregnant women, scientific knowledge about COVID-19 is still incomplete, for example regarding the question of whether and what consequences infection can have on the unborn child.

Even though pregnant employees have not yet been classified as risk persons, pregnant women are considered to be particularly worthy of protection under the Maternity Protection Act (Mutterschutzgesetz, MuSchG). According to s1(1) Maternity Protection Act, the law protects the health of the woman and her child at the place of work, training and study during pregnancy, after childbirth and during breastfeeding period. According to this, the employer is particularly obliged to carry out a so-called risk assessment of the pregnant employee’s workplace.

Under s1(1) s2 Maternity Protection Act, the employer must ensure that pregnant employees can carry out their employment without endangering themselves or their child, despite the spread of COVID-19. There is therefore no general ban on their employment during the pandemic. A decision on protective measures to be taken for pregnant employees is always a case-by-case decision depending on the specific workplace. The employer must assess the working conditions (s5 Working Conditions Act (Arbeitsschutzgesetz, ArbSchG)) and also assess the pregnancy-related risks (s10 Maternity Protection Act). Furthermore, the employer must offer the pregnant woman a discussion about possible adjustments to her working conditions.

According to s11(2) Maternity Protection Act, the employer may not allow a pregnant woman to carry out any activities or expose her to any working conditions in which she comes or may come into contact with biosubstances from risk groups 2, 3 or 4 as defined in s3(1) of the Biological Substances Ordinance to a degree that poses an irresponsible risk to her or her child. As a precautionary measure, the Committee for Biological Agents (ABAS) has classified COVID-19 in risk group 3 of the Biological Substances Ordinance. Only when it has been clarified that a risk relevant to maternity protection with regard to COVID-19 has been ruled out (e.g. through suitable protective measures) can the pregnant employee continue her work.

The employer must check whether there is an irresponsible risk by carrying out a risk assessment. The risk assessment, which must be carefully prepared, must specify the possible activities and conditions, taking into account the protective measures specified which enable the woman and her unborn child to work safely. In view of the hazards posed by COVID-19, the following aspects must be taken into account:

• Implementation of hygiene standards.
• Ability to maintain the minimum distance of 1.5 metres between employees.
• Location, size and ventilation conditions at the workplace.
• Where there is an official order in place imposing contact restrictions, the protection of the general population through reduction in contact with other individuals should be taken into account in the same way when employing a pregnant woman.
• Local infection rates. Regionally different results are conceivable with regard to a possible employment ban.
• Contact with constantly changing individuals (e.g. customer-facing roles in commerce) or regular contact with a larger number of contacts, where compliance with the minimum distance cannot be ensured with certainty.
• The existence of a particular risk to the pregnant woman, for example, because of previous illnesses or because she belongs to a risk group.
• Employment in public transport, field services, health care, nursing, etc.
• The level of cooperation in the organisation, the type and frequency of contacts, the necessity for ‘face-to-face’ contacts.
• Whether and to what extent a pregnant employee can be required to wear protective equipment (e.g. FFP2/FFP3 masks) depends on whether it is reasonable for the pregnant woman. Handouts from the ministries of some federal states (e.g. North Rhine-Westphalia) and the Federal Office for Family and Civil Affairs point out that tight-fitting respirators (FFP2/FFP3) are only suitable for pregnant women to a limited extent, as the time during which they can be worn is very limited due to possible breathing issues for pregnant women.

The principle of risk mitigation applies both in general occupational safety law and in maternity protection law (see s9(2)1 Maternity Protection Act). According to this, health-related hazards to pregnant and breastfeeding employees should be avoided or reduced as far as possible, especially and also with regard to COVID-19, within the bounds of what is reasonable. If an irresponsible risk to pregnant or breastfeeding employees at the workplace cannot be ruled out, the employer must redesign working conditions accordingly (e.g. provide a single office).

Only if a reorganisation is not reasonable and a transfer to another suitable workplace is not possible can a (temporary) partial or complete ban on employment be considered. The assessment must take into account in particular the activity, type of contact between employees in the organisation, the size and layout of the organisation as well as the location of individual operating units.

Employers must therefore consider the specific activity poses an irresponsible risk to the pregnant employee, and in particular whether the assessment must take into account the possible dangers from COVID-19. As a rule, a supplement to the risk assessment will be necessary for this purpose.

Organisations must review their existing occupational health and safety measures in the light of the COVID-19 occupational health and safety standard. In the current situation, it is essential that employers monitor disease incidence and the spread of COVID-19 and reassess the associated risk on an ongoing basis, if necessary.

Only when it has been clarified that an irresponsible risk has been ruled out, e.g. through sufficient immunity, vaccination protection or adjustment of working conditions, can the pregnant employee continue her work.

To reduce compliance risks, employers should document the risk assessment carried out. It is also recommended that the company doctor (if available) be consulted in all matters concerning working conditions, but also in personal counselling of pregnant woman. Finally, the works council’s right of co-determination under s87(1)7 Works Council Constitution Act (Betriebsverfassungsgesetz, BetrVG) must be observed both in the risk assessment and in the event that occupational health and safety measures are required.