The protective rules apply not only to female employees and apprentices, but also to students working during school holidays.
Article L. 331-2 of the Labour Code defines a pregnant woman as any employee in a state of pregnancy who has informed the employer of her condition by a medical certificate sent by registered letter, and a breastfeeding woman as any employee who is breastfeeding her child beyond the eight-week period following childbirth and who informs her employer of this by a medical certificate sent by registered letter.
The employer’s signature on the duplicate medical certificates attesting the pregnancy or breastfeeding is equivalent to an acknowledgement of receipt.
Please note:
The financial measures for pregnant or breastfeeding women are subject to a minimum condition of affiliation to the social security system. Thus, in order to be compensated by the health insurance during maternity leave, the women concerned must be affiliated for at least 6 months during the year preceding the maternity leave.
A minimum affiliation of 6 months out of the 12 months preceding maternity leave is also required to activate compensation:
in the event of loss of earnings caused by a transfer from a night shift to a day shift (see below, “Night work”)
in the event of exemption from work granted in connection with night work or work considered dangerous for a pregnant or breastfeeding woman (see below, ” Strenuous and dangerous work “).
A pregnant or breastfeeding woman is not automatically exempted from night work, i.e. work between 10 p.m. and 6 a.m. It is only at her request that an analysis of her situation is carried out to check whether continuing to work at night poses a risk to her health or that of her child.
The procedure provided for in this respect by the law is as follows:
Pregnant or breastfeeding women apply to their employer for exemption from night work;
While this type of request must be made by registered letter, an employer’s signature on a duplicate of the request is also an acknowledgement of receipt.
Employers have one week from receipt of the request to submit the file to an occupational physician;
It is not the employer, but rather an occupational physician who decides whether or not continuing to work at night is harmful to the worker’s health. This opinion shall be given within 15 days of the transmission of the file by the employer.
If an occupational physician determines that there exists a risk to the health of an employee, employers are obliged to transfer such workers to a daytime workstation, at the same salary;
In order to prevent a loss in pay for a woman worker who would otherwise no longer be entitled to the night work bonus, the text provides that employers shall continue to pay the bonus.
However, employers are subsequently reimbursed by CNS, and consequently are subject to no financial burden in this regard.
If a transfer to a day shift is not possible, women must be excused from work for the entire period necessary to protect their health, with such period to be determined by the occupational physician;
During this period of exemption, the employer is no longer obliged to pay a woman’s salary, which is covered by the CNS via the maternity cash benefit.
Breastfeeding women are also eligible for the procedure described above until their child’s first birthday.
Note:
If the opinion issued by the occupational physician is not to her satisfaction, a pregnant or breastfeeding woman may submit an appeal to the Health Directorate within 15 days.
The Directorate’s decision can be challenged before the Social Security Arbitration Tribunal, which re-examines the case.
If the decision of this body still does not lead to the desired result, a woman can still appeal to the High Council of Social Security.
Employers have the same options.
It should be noted that this entire procedure does not have suspensive effect, which means that the opinion given by the first occupational physician is put into effect pending a final decision.
Strenuous and dangerous work is classified into two lists.
For work included in the first list, employers must carry out an assessment to check whether a given woman would be at risk to her health or that of her child if she continued working. If this is not the case, she continues to work at her job.
If this is not the case, the workstation must be modified, or a change of assignment or exemption from work may be necessary.
Examples of List 1 work: work involving the risk of slipping or falling, assembly line work at a prescribed rate, ionising radiation, work requiring constant squatting or bending, etc.
For the work listed in the second part, protective measures will be put in place after any indication of a risk of exposure to this work. If this risk exists, a change of post or an exemption from duty must be granted.
Examples of List 2 work: work exposing women to chemical agents such as lead, work in an hyperbaric atmosphere of high overpressure, work exposing women to biological agents such as the rubella virus, except where protected by their immune status, etc.
List 2 works are generally considered even more dangerous than List 1 works, because:
the mere risk of exposure is sufficient to justify triggering protection;
in contrast to List 1 work, no attempt is made to reorganise workstations, instead a transfer is made straight away and if this is not possible, a dispensation from work is granted.
The law provides for the suspension of the trial period from the day a pregnancy certificate is submitted to an employer.
Employees continue to work normally until the start of their maternity leave. The remaining probationary period only resumes at the end of a period of 12 weeks after the birth.
It should be noted that this suspension mechanism only applies in the case of a trial period under a permanent contract.
Employers are prohibited from giving notice of termination of an employment relationship:
to pregnant women (from the moment a pregnancy certificate is submitted to her employer);
to a woman who has given birth during the twelve weeks following childbirth.
If a notification of termination of employment is given before a pregnancy has been medically established, an employee must justify her condition by producing a medical certificate by registered letter within eight days of the notification of dismissal. In this case, the dismissal or, where applicable, the convocation to the interview preliminary to termination are null and void.
Within fifteen days of dismissal, an employee may petition the Chief Magistrate of the Labour Court, sitting in an emergency session, to declare the dismissal null and void and to order the continuation of the employment relationship.
Employees who have declared their pregnancy to the employer are therefore protected against dismissal in the sense that they cannot be dismissed with notice. However, this protection does not extend to a possible termination of the employment contract for gross misconduct.
In such cases, employers have a choice:
lay off the offending employee and then to apply to the Labour Court for the termination of her contract;
make a direct application for termination of the employment contract.
In both cases, employers must obtain the permission of the Labour Court. If the Labour Court refuses to give its consent, the woman must remain an employee or be reinstated.
It should also be noted that the law allows a woman who has been unlawfully dismissed or laid off to request that her pay be maintained pending the final outcome of the case.
She has 15 days to petition the court. If the law rules against her, she must restore all wages received provisionally. If she wins her case, she retains her wages.
This protection has an impact on the trial period, which is suspended from the day the pregnancy certificate is submitted to the employer.
The employee continues to work normally until the start of her maternity leave. The remaining probationary period only resumes at the end of a period of 12 weeks after the birth.
It should be noted that the suspension mechanism only applies in the case of a trial period for persons working under a permanent contract.
Maternity leave begins eight weeks before and ends 12 weeks after the birth of a child (prenatal/postnatal leave).
Application for this type of leave is made by submitting a medical certificate indicating the expected date of delivery, which must be prepared and sent to CNS (financial benefits department) within the last 12 weeks of pregnancy.
If a woman gives birth before the expected date indicated on the medical certificate, the days of prenatal leave not taken are added to the postnatal leave.
If the birth takes place after the presumed date, the ban on employment of the woman who has given birth is extended without reducing the duration of postnatal leave.
After the birth, a copy of the birth certificate of a child must be submitted to the CNS.
For employees and self-employed persons, the cash maternity allowance corresponds to that provided for in the event of illness or accident, but may not exceed five times the minimum social reference wage.
What are an employee's rights during maternity leave?
Does the period of maternity leave entitle a woman to days off? Can my employer assign me to another job when I return from maternity leave? Can leave not taken before going on maternity leave be carried over to the following year?
The Labour Code answers all these questions:
during maternity leave, employers must keep pregnant women in their job or in a similar job requiring the same level of qualification;
seniority for length of service is not interrupted when pregnant women go on maternity leave;
women accrue ordinary leave during periods of maternity leave;
days of leave not yet taken at the start of maternity leave can be carried over to the following year, in principle until 31 March.
What are an employee's rights after maternity leave?
At the end of a maternity leave, female employees may resign without any notice period, if they do not wish to return to her job in order to raise her child.
In this case, they have priority for re-employment.
This means that for one year after their departure, they can ask their employer to re-hire them.
For one year from this request, employers must hire the women concerned as a priority if they are recruiting new staff at their level of qualification.
There are contingencies:
There is no guarantee that employees will be rehired by their employer, therefore this is not considered as unpaid leave.
If an employee is actually rehired, the law guarantees her all the benefits she enjoyed at the time of her departure.
If a woman continues to breastfeed her child after maternity leave, she is entitled to breastfeeding time during working hours.
This breastfeeding time, which is granted only on request and after presentation of medical certificates, corresponds to two periods of 45 minutes each per day. These periods are at the beginning or end of the working day. They may be reduced to a single period of 90 minutes if the working day includes only a one-hour break or if it is impossible to breastfeed the child in the vicinity of the workplace.
Breastfeeding time is considered working time and is entitled to normal pay.