Maternity protection: periods, prohibitions and the money in between

A bakery with nine staff dismisses a sales assistant who has earned €2,400 gross a month for five months. Eleven days after the notice reaches her, she hands in a doctor's certificate confirming her pregnancy. The dismissal is therefore prohibited: the employment continues, and with it the salary of €2,400 for every month the business had already written off.

The notification sets everything in motion

The Maternity Protection Act (MuSchG) ties almost every employer duty to what the employer knows. As long as the business is unaware of the pregnancy, it can neither adjust working hours nor assess hazards. Practice therefore starts not with a deadline but with a notification from the employee.

Section 15 MuSchG phrases this notification as a should-rule. A pregnant woman should tell her employer about the pregnancy and the expected day of delivery as soon as she knows. A breastfeeding woman should tell the employer as early as possible that she is breastfeeding.

If the employer asks for evidence, she should present a certificate from a doctor, a midwife or a male midwife stating the expected delivery date. That date is the basis for every later calculation: the protection period before birth is counted backwards from it.

For small businesses this yields a first working rule. Record the notification with its date, file the certificate in the personnel record and enter the expected date into staff planning straight away. Whoever completes these three steps on day one never has to reconstruct anything later.

Between what the woman knows and what the business knows there are often several weeks. The most expensive mistakes happen in that gap, above all with dismissals. The Act created a separate grace period for exactly this situation, set out below in the section on the dismissal ban.

Six weeks before, eight weeks after

Section 3 MuSchG sets two periods in which the employer may not employ the woman. Before delivery it is the last six weeks, after delivery eight weeks. Both are called protection periods, yet legally they work in entirely different ways.

The woman herself controls the period before birth. She may keep working if she expressly declares herself willing, and she can withdraw that declaration at any time with effect for the future. The business may ask her to continue, but it cannot insist.

The period after birth, by contrast, is mandatory. The employer may not employ the woman until eight weeks have passed, even if she wants to work. A declaration of willingness that still applied before the birth no longer carries any weight afterwards.

If the child arrives earlier or later than calculated, the first period shifts accordingly. A later birth lengthens the time before, an earlier one shortens it. The missing days are not lost, however: they are added on to the protection period after delivery.

The extension to twelve weeks applies in three cases: premature births, multiple births, and where a disability of the child is certified by a doctor before eight weeks have passed. The third case has a peculiarity that is easily lost in the payroll run.

Because of a certified disability, the period is extended only if the woman applies for it. Premature and multiple births take effect automatically. After a stillbirth the extension does not apply under the wording of the Act; the basic period remains.

If the child dies, subsection 4 allows an earlier return: once the first two weeks have passed, provided the woman expressly asks for it and a doctor's certificate raises no objection. This declaration too can be withdrawn at any time. The initiative never lies with the business here.

Subsection 5 also protects women after a miscarriage, graded by week of pregnancy. From the 13th week an employment ban of two weeks applies, from the 17th week six weeks and from the 20th week eight weeks. In each case the woman can expressly declare herself willing to work earlier.

Restrictions while work continues

Between the notification and the protection period there are often months in which the woman works normally. The Act sets limits for this time too, and they apply without any medical certificate. They concern how long she works, when during the day, and the break afterwards.

Section 4 MuSchG limits the work of a pregnant or breastfeeding woman aged 18 or over to eight and a half hours a day and 90 hours per double week. Under 18 the limits are eight hours a day and 80 hours. Sundays are counted into the double week.

A second limit is individual. The employer may not employ the woman beyond the weekly hours agreed in her contract, measured as a monthly average. Overtime that is otherwise usual in the business therefore falls away. Where she has several employers, the hours are added together.

After the end of the daily working time, an uninterrupted rest period of at least eleven hours must be granted. Section 5 also prohibits employment between 8 pm and 6 am. Work until 10 pm is allowed only under the conditions of section 28 MuSchG, which this module does not cover in depth.

The medical employment ban in section 16 is something else. It requires a doctor's certificate stating that the health of the woman or her child is endangered if the employment continues. As far as the certificate reaches, the employer may not use her, wholly or partly.

The difference from a sick note decides how payroll is run. Incapacity for work due to illness triggers continued sick pay with its time limit. An employment ban outside the protection periods triggers maternity protection pay instead, and section 18 names no maximum duration for it.

After the birth a weaker form applies. If a doctor certifies that a woman is not fully capable of work in the first months after delivery, the employer may not give her tasks that exceed her capacity. Lighter work remains possible.

The dismissal ban and its two weeks

Section 17 MuSchG declares a dismissal of a pregnant woman inadmissible. The ban applies throughout the pregnancy and after delivery until the end of the protection period, but for at least four months. After a miscarriage after the twelfth week it applies for four months.

The provision knows no qualifying period and no minimum size of business. The ban therefore also protects the sales assistant who has worked for only five months at a bakery with nine staff. Anyone thinking of the thresholds of general unfair-dismissal protection gets this wrong.

The condition is that the employer knows of the pregnancy, or is told within two weeks after the dismissal reaches the woman. This grace period explains the opening case: eleven days fall within the two weeks, so the dismissal fails even though the business did not know.

Even missing the two weeks does no harm if the woman is not responsible for the delay and makes the notification without undue delay. The typical case is that she learns of the pregnancy only later herself. The business therefore cannot rely blindly on the window having closed.

The ban reaches further than the notice itself. It applies equally to preparatory steps the employer takes with a view to a dismissal. Whoever already looks for a successor during the pregnancy in order to let the employee go afterwards is on shaky ground.

The only way out runs through an authority. The highest state authority responsible for occupational safety, or a body it designates, may exceptionally declare a dismissal admissible in special cases that have nothing to do with the woman's condition.

Even then the form is strict: the dismissal must be in writing and must state the reason. The business therefore first applies to the authority, waits for its declaration and only then gives notice, with the reason expressly stated.

Section 17 speaks only of dismissal. A fixed-term contract that ends on its agreed date is not covered by that wording. Whether the fixed term itself was valid depends on other provisions and falls outside this module.

Who pays for which period

Financially, the Act divides the absence into two stretches. During the protection periods the woman receives maternity benefit and a top-up from the employer. Outside the protection periods, when an employment ban applies, the employer alone pays maternity protection pay. Each follows its own calculation rules.

Maternity protection pay under section 18 equals the average pay of the last three calendar months settled before the pregnancy began. If the employment starts only afterwards, the first three months of employment count. The ban is meant to leave the woman neither better nor worse off.

During the protection periods, a woman who is a member of a statutory health insurance fund receives maternity benefit under Book Five of the Social Code. It is paid for both protection periods and expressly also for the day of delivery. The fund pays at most 13 euros per calendar day.

The basis is set by section 24i of Book Five: the average calendar-day pay, reduced by statutory deductions, of the last three calendar months settled before the protection period began. If this net pay exceeds 13 euros, the fund does not cover the remainder.

The employer pays that remainder under section 20 MuSchG as a top-up to maternity benefit. It equals the difference between 13 euros and the net pay per calendar day. Together the fund and the business thus replace the previous net pay, measured over the same three-month window.

If the woman works for several employers, the calendar-day pay figures are added up, and each business bears a share in proportion to its own pay. If the employment ends through a dismissal approved by the authority, the body that pays maternity benefit also pays the top-up.

Women who are not themselves members of a statutory fund receive maternity benefit from the federal budget, capped at 210 euros in total. It is paid on application by the Federal Office for Social Security. The employer top-up, by contrast, attaches to the existing employment, not to the fund.

For the business, the top-up is often the largest item. With net pay of 80 euros per calendar day, the fund bears 13 euros and the employer 67 euros, over the entire length of both protection periods. The arithmetic is simple; the amount is not.

Section 24i(4) of Book Five sets a limit: the claim to maternity benefit is suspended as far and as long as the woman receives pay subject to contributions. If she voluntarily keeps working during the period before birth, she draws her wages for those days and the maternity benefit is suspended.

When the average is calculated, section 21 MuSchG leaves certain items out: one-off payments and reductions caused by short-time work or absences for which she is not to blame. A permanent pay rise within the reference period, however, is applied to the whole period.

Holiday is not lost through employment bans

Section 24 MuSchG settles a question that arises with every longer absence. For the entitlement to paid annual leave, time lost because of an employment ban counts as time worked. The business may therefore not reduce holiday because of the protection periods or a medical ban.

If the woman did not receive all of her holiday before the ban began, she can take the rest after it ends, in the current or the following leave year. The usual forfeiture at the turn of the year does not hit her in this situation in the familiar way.

The interplay with parental leave matters in practice. Many mothers attach their remaining holiday to the protection period after birth and start parental leave only afterwards. How this sequence affects the parental-leave deadlines is shown in the second module.

In short, maternity protection requires four dates from the business: the day of notification, the expected delivery date, the actual date of birth and the net pay of the last three settled months. Deadlines, bans and payments follow from them almost automatically.