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:
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.