A new Decree of Ministry of Health No. 180/2015 Coll. regarding types of works and workplaces which cannot be assigned to pregnant or breastfeeding female employees and employees, who are mothers, until the end of the ninth month after childbirth as well as to certain adolescent employees, came into effect on September 1, 2015. This Decree raises an issue of special work conditions for privileged categories of employees, especially women, in connection with their motherhood. This article focuses on these special rights pertaining to pregnant female employees and corresponding obligations on the part of employers.
According to Art. 32 Para 2 of the Czech Bill of Fundamental Rights and Liberties, special care, protection in labour relationships and appropriate medical conditions shall be guaranteed to women during their pregnancy. This rule on constitutional level is concretized, with regard to labour relationships, especially in the Czech Labour Code (Act No. 262/2006 Coll., as amended, hereinafter the “LC”). Some of these protective provisions do not apply only to pregnant employees, but also to breastfeeding employees and employees looking after children (of different ages).
With regard to changes in an employment relationship, if a pregnant female employee performs the type of work, which pregnant women are prohibited from performing, or work which, under a medical certificate, may put her pregnancy at risk, the employer shall be obliged to transfer her temporarily to an alternative and suitable work where she will be able to attain the same earnings as in her former type of work (Sec 41 Para 1 Letter c) LC, Sec 239 Para 1 LC). If a pregnant female employee, who works night shifts, requests to be transferred to day shift, the employer must comply with such request (Sec 41 Para 1 Letter g), Sec 239 Para 1 LC). Night shift means, under the applicable LC provisions, work during night time (10 p.m. – 6 a.m.) for at least 3 hours of working time within 24 consecutive hours on average at least once a week within 26 consecutive weeks.
If, through no fault of her own, a female employee attains lower earnings while performing work, where she has been transferred, she shall be provided with a differential (balancing) benefit under Act No. 187/2006 Coll., as amended, on sickness insurance. This benefit is paid from the system of sickness insurance by the competent District Administration of Social Security.
The period of pregnancy is considered as the so-called protection period, during which, as general rule, the employee can´t be given notice of termination by the employer (Sec 53 Para 1 Letter d) LC). A pregnant woman can´t be given a notice even in some situations in which the law in other cases of protection periods (such as period while an employee is recognized to be temporarily unfit for work or period while an employee is fully released (from his job) to exercise a public office) does allow the employer to give the employee a notice. This means, a pregnant employee can´t be given notice even
- if the employer's undertaking, or its part, relocates; neither
- due to a reason for which the employer may immediately terminate such employee's employment relationship, but only if the pregnant employee is being on maternity leave; and neither
- due to another breach of an obligation relating to work performed, meaning
- serious breach of obligation(s) arising from statutory provisions and relating to work performed by employee or
- ongoing but less serious breaches of obligation(s) arising from statutory provisions and relating to work performed by employee
both in the sense of Sec 52 Letter g) LC; or
due to another breach of the employee's obligation laid down in Sec 301a LC (i.e. obligation to observe, in the first 14 days of temporary incapacity for work, the prescribed regimen of an insured person being temporarily unfit for work with regard to the obligation to dwell at the place of employee´s stay and to observe the time and scope of permitted walks) in an especially gross manner.
The employer may not immediately terminate an employment relationship with a pregnant employee (Sec 55 Para 2 LC).
There exist also other special duties on the part of the employer that relate also to occupational safety and health protection of pregnant employees. Aside from the general duties, such as, e.g., disallowing employees to perform prohibited types of work or such demanding work that is beyond the employees’ capabilities and/or health condition (Sec 103 Para 1 Letter a) LC), the employer is obliged to inform female employees, who during their work may be exposed to some risks with adverse effects on their foetus, of this fact. Pregnant employees must be further made aware of any risks and their possible effects on pregnancy, breastfeeding or on their health and the employer must take necessary measures, including those concerning the reduction of mental and physical fatigue and other kinds of mental and physical stress related to the work done, for the entire period for which it is necessary for the sake of protecting their safety or their child's health (Sec 103 Para 1 Letter h) LC). The employer is obliged to adapt the rest areas at the workplace (site) for pregnant employees (Sec 103 Para 4 LC). These rest areas must enable rest in lying position (Sec 55 Para 4 of Act No. 361/2007, as amended, on conditions of occupational safety).
In connection with the childbirth and care for a newly-born child, a woman (female employee) is entitled to 28 weeks of maternity leave; if she gives birth to two or more children at the same time, she is entitled to 37 weeks of maternity leave. The employee shall go on her maternity leave, as a rule, at the beginning of the sixth week before the expected childbirth (confinement), but no earlier than the beginning of the eighth week before the expected confinement (Sec 195 Para 2 LC).
Generally, pursuant to Sec 238 Para 1 LC, it is prohibited to employ female employees for those types of work which may endanger their motherhood (maternity). Besides, there are further special rules which apply for pregnant employees. It is prohibited to employ pregnant employees
- in those types of work for which they are not fit under the relevant medical certificate; and
- in those types of works and workplaces which are classified in Sec 2 of Decree No. 180/2015 Coll., as amended, as jobs that cannot be assigned to female employees, such as work carrying certain amount of risk, jobs that require use of breathing apparatus, jobs during which the employee could be exposed to strokes etc.
Pregnant employees may be instructed to go on a business trip outside the municipality (location) of their workplace or home address only with their consent; the employer may transfer them to another location (municipality) only at their own request (Sec 240 Para 1 LC).
When a pregnant employee requests to work only part-time or requests some other suitable adjustment to her (or in some instances also to his – when looking after a child) weekly working hours, the employer shall be obliged to comply with such request unless this would be impossible due to serious operational reasons (Sec 241 Para 2 LC). It is prohibited to employ pregnant (female) employees in overtime work (Sec 241 Para 3 LC).
Generally, pursuant to Sec 316 Para 4 LC, employers may not demand information from an employee that does not directly relate to performance of his or her work and to the basic labour relationship (employment relationship and relationships arising from agreements on work performed outside of an employment relationship). The employer may thus not demand, in particular, information on (among others) employee´s pregnancy. However, this rule does not apply in cases, where there is a cause for it consisting in the nature of work to be performed provided that the requirement is adequate (for example: the employee performs a type of work which is prohibited to pregnant employees), or in the cases where it is laid down in LC or in another statute. Such information may not be obtained by employers even through third parties.