CELEX: 51990PC0406
Language: en
Date: 1990-10-17
Title: PROPOSAL FOR A COUNCIL DIRECTIVE CONCERNING THE PROTECTION AT WORK OF PREGNANT WOMEN OR WOMEN WHO HAVE RECENTLY GIVEN BIRTH

9. 11. 90                              Official Journal of the European Communities                                No C 281/3
                                                              II
                                                       (Preparatory Acts)
                                                 COMMISSION
              Proposal for a Council Directive concerning the protection at work of pregnant women or
                                            women who have recently given birth
                                               COM(90) 406 final — SYN 303
                                    (Submitted by the Commission on 18 September 1990)
                                                        (90/C 281/04)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                           Whereas 11 Heads of State or Government of the
                                                                   Member States of the European Community, meeting in
                                                                   Strasbourg on 9 December 1989, adopted the
Having regard to the Treaty establishing the European
                                                                   Community charter of basic social rights for workers;
Economic Community, and in particular Article 118a
thereof,
                                                                   Whereas paragraph 19 of this charter lays down that
Having regard to the proposal from the Commission,                 'every worker must enjoy satisfactory health and safety
drawn up after consultation with the Advisory                      conditions in his or her working environment' and that
Committee on Safety, Hygiene and Health Protection at              'appropriate measures must be taken with a view to
Work,                                                              achieving further harmonization of conditions in this
                                                                   area while maintaining the improvements made';
In cooperation with the European Parliament,
Having regard to the opinion of the Economic and                   Whereas the Commission, in its action programme for
Social Committee,                                                  the implementation of the Community charter of basic
                                                                   social rights for workers, has included among its aims
Whereas Article 118a of the Treaty provides that the               the adoption by the Council of a Directive on the
Council shall adopt, by means of directives, minimum               protection of pregnant women at work;
requirements for encouraging improvements, especially
in the working environment, to ensure a better level of
protection of the safety and health of workers;                    Whereas Council Directive 89/391/EEC of 12 June
                                                                   1989 on the introduction of measures to encourage
                                                                   improvements in the safety and health of workers at
Whereas this Directive does not justify any reduction in
                                                                   work (2) provides, in Article 15, that particularly sensitive
levels of protection already achieved in individual
                                                                   risk groups, including pregnant women, must be
Member States, the Member State being committed,
                                                                   protected against the dangers which specifically affect
under the Treaty, to encouraging improvements in
                                                                   them;
conditions in this area and to harmonizing conditions
while maintaining the improvements made;
                                                                   Whereas women who are pregnant or have recently
Whereas, under the terms of that Article, those directives         given birth must be considered a specific risk group in
are to avoid imposing administrative, financial and legal          many respects, and measures must be taken with regard
constraints in a way which would hold back the creation            to their health and safety;
and development of small and medium-sized under-
takings;
                                                                   Whereas the fatigue associated with the condition of
Whereas, pursuant to Council Decision 74/325/EEC (*),              pregnant women and those who have recently given birth
as last amended by the Act of Accession of Spain and               makes it necessary for them to be granted a period of
Portugal, the Advisory Committee on Safety, Hygiene                leave from work, and they should therefore be allowed
and Health Protection at Work is consulted by the                  to stop work for such a period;
Commission on the drafting of proposals in this field;
(') OJ No L 185, 9. 7. 1974, p. 15.                                (2) OJ No L 183, 29. 6. 1989, p. 1.
 ---pagebreak---  No C 281/4                            Official Journal of the European Communities                                 9. 11. 90
Whereas the ergonomic difficulties faced at the                   Whereas, in order to determine the appropriate measures
 workplace by women workers in late pregnancy and                 to protect the health and safety of pregnant workers, the
 their particular needs arising from their condition are          Member States should, in accordance with Article 6 of
 such that arrangements should be made for them to be             Council Directive 89/391/EEC, take all measures to
 removed from such workplace for a suitable period prior          ensure that a prior evaluation of the risks particularly
 to giving birth;                                                 affecting these workers is carried out; whereas it is in the
                                                                  interest of all that the results of this evaluation are
                                                                  communicated to the social partners;
Whereas the delicate condition of women workers
 immediately after giving birth renders them vulnerable to
risks at the workplace and, as preventive measures may           Whereas some types of activities and some working
be insufficient to guarantee their health and safety in          conditions may damage the health of pregnant and
 such a case, they should be removed from the workplace          breastfeeding workers; whereas, consequently, it is
 for a suitable period after giving birth;                       necessary to ensure these workers and adequate
                                                                 adjustment of their working conditions and working
                                                                 hours;
Whereas the purpose of the period of leave from work
— namely the protection of the health of pregnant
                                                                 Whereas, in addition, nightwork may be harmful to the
women or women who have recently given birth —
                                                                 physical and mental health of pregnant workers under-
would not be achieved unless accompanied by the main-
                                                                 taking work which has particular risks or significant
tenance of rights, without which, some of these women
                                                                 physical or mental stress and alternative provisions
would be forced to give up most of their period of leave
                                                                 should be made to avoid these risks;
in order not to lose their remuneration; consequently
maintenance of employment and income rights should be
guaranteed during the period;
                                                                 Whereas, in addition, the exposure of pregnant workers
                                                                 to certain physical, chemical or biological agents and
                                                                 processes may impair the health of pregnant and breast-
Whereas the objective of this Directive is to protect the        feeding workers; whereas in consequence work practices
health of the pregnant worker within her working envi-           exposing or likely to expose pregnant and breastfeeding
ronment, and it is necessary therefore to take account of        workers to these agents and processes should be banned;
the working relations between the potential beneficiary
and her employer; whereas, furthermore, it is advisable
to leave to the Member States the faculty of subjecting
the eligibility regarding the maintenance of the                 Whereas measures regarding the protection of the health
remuneration or the payment of the allowance to the              of pregnant workers and/or workers having given birth
existence of a working relationship since the beginning          should not have an unfair effect on the position of
of the pregnancy or, by extension, to the pregnant               women on the labour market; whereas in this
workers who, at the beginning of their pregnancy, were           perspective, this Directive is to be without prejudice to
registered as unemployed;                                        the provisions of the Council Directives concerning equal
                                                                 treatment for men and women,
Whereas the provisions of this Directive regarding the
compulsory rest period before the presumed date of birth
(and after the birth) would have no effect if this rest          HAS ADOPTED THIS DIRECTIVE:
period were not to be accompanied by the maintenance
of pay or the payment of an equivalent allowance;
whereas, in consequence, the eligibility period referred to
                                                                                         SECTION I
above does not apply to the compulsory rest period and
it is necessary that the Member States take all the appro-
                                                                                    Scope and definition
priate measures to that effect.
                                                                                          Article 1
Whereas the risk of dismissal for reasons associated with
their condition may have harmful effects on the physical         The purpose of this Directive, which is an individual
and mental state of women who are pregnant or have               Directive within the meaning of Article 16 (1) of
recently given birth; whereas, consequently, it is               Directive 89/391/EEC, is to implement measures to
necessary to prohibit the dismissal of pregnant workers          encourage improvements in the safety and health of
or these who have recently given birth for reasons asso-         pregnant workers and women workers who have
ciated with their condition;                                     recently given birth.
 ---pagebreak--- 9. 11. 90                             Official Journal of the European Communities                               No C 281/5
                         Article 2                               (b) for additional periods in respect of which a medical
                                                                     certificate is produced stating that it is necessary for
For the purposes of this Directive 'pregnant workers' and            the health of the mother or child:
'women workers who have recently given birth' shall
refer to pregnant workers and those who have recently
given birth who inform their employer of their condition,             (i) during pregnancy;
either in person or through a medical practitioner or
other competent medical authority, in accordance with                (ii) during a specified time beyond the period after
legal provisions or national practices.                                   childbirth fixed pursuant to subparagraph (a),
                                                                          the length of which shall be determined by the
                                                                          competent authority after consulting the most
                                                                          representative organizations of employers and
                                                                          workers.
                       SECTION II
                                                                (4)      The measures referred to in paragraph 3 may
                   Working conditions                           include transfer to day work where this is possible, the
                                                                provision of social security benefits or an extension of
                                                                maternity leave. Employment rights shall be maintained
                                                                in this case.
                         Article 3
1.    Without prejudice to the arrangements laid down                                      Article 4
in Article 6 of Directive 89/391 /EEC, Member States
shall take all necessary steps to ensure that pregnant           1.    Member States shall take the necessary measures to
workers are protected against the risks arising                 ensure that pregnant workers are not engaged in acti-
particularly at work. To this end, Member States shall          vities during which they are actually or potentially
ensure that the relevant health and safety authorities          exposed to the agents or processes listed in Annex I.
carry out an evaluation of the impact on pregnancy of           Under no circumstances shall pregnant workers be
the activities in which these women are engaged, in             exposed to potential concentrations in excess of the
respect of the nature and degree of exposure to any             occupational exposure limits for other agents.
chemical, physical or biological agent, and also in respect
of posture, movements and mental and physical fatigue
related to their work. These evaluations shall be               2.     The Member States shall take the necessary
communicated to employers and workers so as to                  measures to ensure that breastfeeding workers are not
increase awareness of possible risks.                           engaged in activities during which they are actually or
                                                                potentially exposed to the agents and processes listed in
                                                                Annex II.
2.    Member States shall take measures to ensure, when         3.     Where a transfer to another activity is not tech-
the type of activity of pregnant and breastfeeding              nically or objectively possible, the workers concerned
workers may endanger their health and safety, that their        shall be granted paid leave from work for the period
working conditions and/or working hours are adapted,            judged necessary for the protection of their health.
and, if necessary, allow a change to alternative duties.        Employment rights shall be maintained during this
The maintenance of pay and employment rights is                 period.
assured in this case.
                                                                                         SECTION III
                                                                Leave arrangements, duration of work and employment
3.    Member States shall take measures to ensure that                                      rights
an alternative to night work is available to women
workers who would otherwise be called upon to perform
such work:                                                                                 Article 5
                                                                1.     Member States shall take the necessary measures to
                                                                ensure that the women referred to in Article 2 are
                                                                granted an uninterrupted period of at least 14 weeks
(a) before and after childbirth, for a period of a least 16     leave from work on full pay and/or a corresponding
    weeks of which at least eight weeks shall be before         allowance, commencing before and ending after delivery.
    the expected date of childbirth;                            The time at which this period of leave commences shall
 ---pagebreak--- No C 281/6                             Official Journal of the European Communities                                9. 11.90
be decided by the beneficiary,        in accordance with                                 SECTION IV
national practice and legislation.
                                                                                       Final provisions
In the eventuality of periods of sickness occurring during
this leave from work, these periods shall not be taken                                     Article 7
into account as part of the 14 weeks. They will be dealt
with under the scheme applicable in case of sickness.            In case of a dispute connected with the implementation
                                                                 of this Directive, and arising within the period of
2.    Member States have the faculty to grant a period of        protection laid down by the latter, Member States shall
leave longer than 14 weeks, not on full pay, as long as          make sure that the rules of procedure take into account
an equivalent standard of protection is assured. In this         the specific situation of the workers concerned, notably
case, the pay and/or the corresponding allowance for             as regard the burden of proof.
the entire period of rest shall not be less than 80 % of
the salary of the beneficiaries, and if need be, within a
                                                                                           Article 8
ceiling defined by national regulation;
                                                                 Strictly technical amendments to the Annexes as a result
3.    Member States shall take the necessary measures to         of technical progress, changes in international regu-
ensure that pregnant workers shall be granted an obli-           lations or specifications and knowledge with regard to
gatory period of paid leave covering a period of not less        the area covered by this Directive, shall be adopted in
than two weeks before the presumed date of delivery.             accordance with the procedure laid down in Article 17 of
                                                                 Directive 89/391/EEC.
4.    Member States have the faculty to subject the right
regarding the payment of the remuneration and/or
allowance as defined in paragraph 1 to the condition that                                 Article 9
the benefiting workers have worked or are registered as
                                                                  1.   Member States shall comply with this Directive by
unemployed since at least the beginning of the pregnancy
                                                                 31 December 1992 by bringing into force the laws, regu-
with the exclusion, in so far as this faculty is concerned,
                                                                 lations and administrative provisions necessary, or shall
of the compulsory rest period defined above in
                                                                 ensure that the social partners bring such provisions into
paragraph 3.
                                                                 force by joint agreement; the Member States shall not
                                                                 thereby be relieved of the obligation to ensure that the
5.    Member States shall take the necessary measures to         aims of this Directive are achieved. They shall forthwith
the effect that pregnant workers benefit from a leave            inform the Commission thereof.
without loss of pay when attending medical examination
before birth, in case such examinations can take place
                                                                 When Member States adopt these provisions, these shall
during working hours only.
                                                                 contain a reference to this Directive or shall be accom-
                                                                 panied by such a reference at the time of their official
                          Article 6                              publication. The procedure for such reference shall be
                                                                 adopted by Member States.
1.    There shall be no diminution of employment rights
during the entire period of leave referred to in Article 5
                                                                 2.    Member States shall communicate to the
                                                                 Commission the text of the national provisions which
                                                                 they have already adopted or are in the course of
2.    Member States shall take the necessary measures to         adopting in the field covered by this Directive.
prohibit the dismissal of the women referred to in Article
2 for reasons connected with their condition during the
period starting at the beginning of their pregnancy until                                 Article 10
the end of the period of leave as defined above in Article
5 (1).                                                           This Directive is addressed to the Member States.
 ---pagebreak--- 9. 11. 90                              Official Journal of the European Communities                                 N o C 281/7
                                                            ANNEX     I
                                    LIST O F AGENTS REFERRED T O IN ARTICLE 4 (1)
          1. Agents
             (a) Physical agents
                 Work causing or liable to cause movements harmful to the embryo or foetus. Work causing or liable
                 to cause an exposure of the body to pressures higher than that of the atmosphere.
             (b) Biological agents
                 Biological agents of Groups III and IV within the meaning of Article . . . of Directive 90/000/EEC
                 and the following biological agents, except when women are proved to be adequately protected
                 against such agents by immunization:
                 — toxoplasma,
                 — rubella virus,
                 — chicken pox virus,
                 — listeria,
                 — neisseria gonorrhoea,
                 — cytomegalovirus,
                 — treponema pallidum,
                 — myxovirus and paramyxovirus,
                 — enterovirus (Echo-Coxsackie),
                 — Epstein-Barr-virus.
             (c) Chemical agents:
             The following chemical agents:
                 — substances labelled R40, R45, R46 and R47 under Directive 67/548/EEC (labelling of chemical
                     substances),
                 — chemical agents in Annex I to Directive 90/394/EEC, on the protection of workers from the
                     risks related to exposure to carcinogens at work,
                 — thiophosphoric esters,
                 — mercury,
                 — nitro derivatives and chlorite derivatives of benzene hydrocarbons,
                 — asbestos,
                 — antimitotic drugs.
          2. Processes
             Pregnant women must not be exposed to the industrial processes listed in Annex I to Directive
             90/394/EEC on the protection of workers from the risks related to exposure to carcinogens at work.
 ---pagebreak--- No C 281/8                            Official Journal of the European Communities                                     9. 11. 90
                                                           ANNEX     II
                LIST OF AGENTS A N D PROCESSES REFERRED T O IN ARTICLE 4 (2) (nursing women)
           1. Agents
              (a) Physical agents:
                  — work in a hyperbaric atmosphere (pressurized enclosures and underwater diving),
                  — underground work (mines).
              (b) Biological agents:
                  Biological agents of Groups III and IV within the meaning of Article . . . of Directive 90/. . ./EEC
                  and the following biological agents except when women are proved to be adequately protected
                  against such agents by immunization:
                  — myxovirus and paramyxovirus.
                  — enterovirus (Echo-Coxsackie).
              (c) Chemical agents:
                  The following chemical agents:
                  — substances labelled R 40 or R45 under Directive 67/548/EEC (labelling of chemical substances),
                  — the chemical agents listed in Annex I to Directive 90/394/EEC on the protection of workers
                     from the risks related to exposure to carcinogens at work,
                  — lead and/or compounds,
                  — mecury and/or mecury compounds,
                  — antimitotic drugs,
                  — solvents containing chlorine,
                  — carbon disulphide,
                  — benzene and/or benzene derivatives,
                  — organochlorine pesticides,
                  — PCB,
                  — chemical agents of known (French: 'formelle') and dangerous percutaneous absorption.
           2. Processes
              Nursing women must not be exposed to the industrial processes listed in Annex I to Directive
              90/394/EEC on the protection of workers from the risks related to exposure to carcinogens at work.