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General maternity protection

Purpose of maternity a protection

Maternity protection plays a key role in ensuring that employees and their children are protected during pregnancy and immediately after the birth. The essential provisions can be found in the Maternity Protection Act (Mutterschutzgesetz, abbr. MuSchG). It relates to the protection of life and health, regulations on workplace design, protection against job loss and financial security in the event of a loss of salary through maternity protection pay, maternity benefit and employer allowances during the protection periods. 

Eligibility for maternity protection 

The provisions of the Maternity Protection Act apply to all female employees who are in dependent employment during pregnancy or breastfeeding. These include also, for example, interns, trainees, part-time employees, women working from home and employees in marginal employment. 

Notification requirement 

The obligation to notify about a pregnancy is not a legal obligation, but merely a recommendation in the interest of the pregnant employee. Pursuant to § 15 (1) MuSchG, the employee should notify their employer of the pregnancy and the expected birth date as soon as the pregnancy is known. While maternity protection applies regardless of whether the employer has been informed, they can only implement maternity protection if they are aware of the pregnancy. 

If an employer requests a medical certificate over the pregnancy pursuant to § 15 (2) Sentence 1 MuSchG, the employee is required to provide one. Pursuant to § 9 (6) Sentence 2 MuSchG, the employer must bear the costs in connection with the issuance of such a certificate. The certificate should contain the calculated date of birth, which is relevant for calculating the maternity protection periods. 

Protection of the employee's health

Occupational health and safety

Pursuant to § 11 (1) Sentence 1 MuSchG, a pregnant employee may not perform activities or be subject to working conditions that pose an irresponsible risk to their own or their child's health or life. This includes activities that involve handling the following points: 

• § 11 (1) MuSchG Handling of hazardous substances 
• § 11 (2) MuSchG Handling of biological substances 
• § 11(3) MuSchG Adverse effects from physical influences (for example, radiation, heat, cold, vibrations, noise)
• § 11 (4) MuSchG High-stress work environment (for example, mining, hyperbaric pressure, oxygen-poor air)
• § 11(5) MuSchG Physical strain and mechanical effects (for example, work that involves heavy lifting, standing for long periods of time)
• § 11 (6) MuSchG Work that involves piece-rate or production line work 

Accordingly, pursuant to § 10 MuSchG, the employer must carry out an assessment of the workplace and determine and document the protection measures and check whether a risk can be excluded.

Note 
As an employer, you are required to take the appropriate measures if there is a possible risk. This may be an adjustment to the workplace, a transfer to a different area of work or, if these two options cannot be considered, an employment ban (pregnancy). 

 

Occupational health protection

§ 4 to 8 MuSchG contain the regulations on the protection of the pregnant or breastfeeding mother's health at work. Here, too, the employer must ensure that the following points are met to rule out any risk to the employee or their child: 

Overtime

§ 4 of the MuSchG prohibits pregnant employees from working overtime. A distinction is made between women under 18 and 18 or over: 

• Under 18: no work of more than eight hours per day (or 80 hours in a double week)
• 18 or over: no work of more than 8.5 hours per day (or 90 hours in a double week)

In addition, the employer must grant an uninterrupted rest period of eleven hours after the completion of the daily working hours. 

Note
If an employee has several employers, the working hours must be added up. 

 

Night work

For pregnant and breastfeeding employees, there is a ban on night work between 8:00 p.m. and 6:00 a.m. according to § 5 MuSchG. In exceptional cases, the employee may work until 10:00 p.m. if they explicitly agree to it. The consent can be revoked at any time. 

Sundays and public holidays

§ 6 of the MuSchG prohibits pregnant and breastfeeding women from working on Sundays and public holidays, unless:

• the woman explicitly states that she is willing to do so.
• there are exceptions from the general prohibition according to § 10 ArbZG (Working Hours Act).
• the employee is granted a substitute day off every week following an uninterrupted night rest period of at least 11 hours.
• any irresponsible risk to the pregnant employee and her child is excluded.

Here, too, the woman may revoke her consent at any time. 

Breastfeeding and medical check-ups 

The employer must release the employee to attend pregnancy and maternity check-ups according to § 7 (1) MuSchG.

In addition, according to § 7 (2) MuSchG, employers are required to release breastfeeding mothers for the required periods during the first 12 months after the birth. 

Ban on termination

During pregnancy and for up to 4 months after the birth, pregnant employees have special protection from dismissal according to § 17 MuSchG. The prerequisite is that the employer was aware of the pregnancy at the time of the termination or is notified within two weeks of termination. The form of the notification is irrelevant, but the employer may request a medical certificate at their own cost. 

Note
The dismissal protection period of four months also applies to women who have a miscarriage after the 12th week of pregnancy. 

 

Protection from dismissal applies to all types of terminations, and a termination is only permitted with the exception that the responsible highest federal state authority gives its approval to the employer's respective application in accordance with § 17 (2) MuSchG . There must be a particularly substantial employer interest that is not related to the pregnancy and would make continued employment unreasonable. 

Contractual termination or termination of employment by the employee is not excluded. 

Employment ban (pregnancy) and protection periods 

General

A key focus of maternity protection are the employment bans for pregnant and breastfeeding mothers in an employment relationship that is subject to mandatory insurance contributions, set out in § 16 and 3 to 6 MuSchG. From the time the employer is notified of the pregnancy, they are responsible for reviewing whether and when any employment bans apply. 

Individual employment ban (pregnancy) after a medical certificate 

If a medical certificate shows that continued employment would endanger the life and health of mother and child, an employer must not continue to employ the pregnant employee. Here, the pregnant mother's individual state of health is taken into account, which can result in her having to take time off work for longer than the statutory maternity protection period. This employment ban may also be applied partially for specific activities or times. 

General Employment Ban (Pregnancy) 

Unlike the individual employment ban (pregnancy), the general employment ban (pregnancy) applies to all pregnant and breastfeeding mothers in an employment relationship, regardless of their personal state of health or physical condition. The general employment ban (pregnancy) takes effect immediately upon notification of the pregnancy and applies, among other things, if the employee is exposed to a hazardous work environment, for example, hazardous substances, heat, cold, vibrations or noise. Here, too, there may be a partial ban on employment for certain activities or times. 

Note
Both under the individual and the general employment ban (pregnancy), the employer may assign the employee to other work that is not excluded by the employment ban. Thereby, the employee must not suffer any financial disadvantage. If this is not possible, the employee must be released from work. In this case, the employee is entitled to maternity protection pay according to § 18 MuSchG. A hierarchy of protection measures can be found in § 13 MuSchG. 

 

Employment ban (pregnancy) 6 weeks before birth

According to § 3 (1) MuSchG, the maternity protection period for pregnant employees starts six weeks before the birth. Continued employment is therefore prohibited. However, the pregnant person may expressly agree to make her work available, and in doing so, override the employment ban. The consent can be revoked at any time. 

The protection period is calculated based on a medical certificate showing the calculated date of birth. The employment ban applies for the full six weeks prior to the day of the birth. 

Employment ban (pregnancy) after birth

After the birth, there is an absolute, general ban on employment for at least eight weeks. Unlike before the birth, the employee cannot waive this. The only exceptions are the following two cases: 

Stillbirth

A stillbirth is defined as when the birth weight is at least 500 grams and the birth occurs from the 24th week of pregnancy. Here, the employee can start working again two weeks after the birth, if she explicitly requests this and a medical certificate does not provide otherwise. She can revoke her consent at any time. 

Miscarriage 

A miscarriage is when the weight of the child is less than 500g and the birth took place before the 24th week of pregnancy. In this case, the employment ban (pregnancy) does not apply. However, the employee may become incapable of working. This is where the German Continued Remuneration Act applies. 

If the birth occurs after the 12th week of pregnancy, a separate protection from dismissal applies. 

According to § 3 (2) MuSchG, the maternity protection period may be extended to twelve weeks if

• the birth is a multiple or early birth,
• or a disability of the child is medically diagnosed within the protection period.

If the birth takes place before the calculated date, the unused part of the protection period is transferred to the eight or 12-week protection period after the birth.  

Overview of protection periods

 

Examples for the calculation of protection periods

Continued remuneration during maternity protection and employment bans

Maternity protection pay 

What is maternity protection pay?

If the case arises in which a pregnant employee may no longer be employed partially or not at all outside the regular maternity protection period pursuant to § 3 MuSchG due to an employment ban, § 18 MuschG guarantees continued remuneration by the employer in the form of the so-called "Mutterschutzlohn" (maternity protection pay). 

The employer then has the option of having their payments of maternity protection pay reimbursed in full by the health insurers in accordance with § 1 (2) Nr. 2 AAG (Expenditure Compensation Act). The maternity protection pay is fully subject to income tax and social security contributions. 

Eligibility for maternity protection pay

Pregnant employees are entitled to maternity protection pay if:

• their work has to be suspended either fully or partially due to an employment ban (pregnancy).
• their activity within the employment relationship has to be changed due to the employment ban (pregnancy).

The entitlement to maternity protection pay ends on the day on which the regular maternity protection period begins according to § 3 MuSchG. 

For the entitlement to maternity protection pay, the employment ban must be the single cause of the loss of working hours. Thus, there is usually no entitlement in the case of

• paid vacation; here, the regulations on vacation pay according to the Federal Leave Act apply.
• Sickness of the employee; here, the regulations on continued remuneration according to the German Continued Remuneration Act apply.

Calculation of maternity protection pay 

Pursuant to § 18 Clause 2 MuSchG, the reference period for the calculation of the maternity protection pay is based on the average gross salary of the three calendar months prior to the month in which the pregnancy starts. The medical certificate is relevant for calculating the start of pregnancy. It states the expected birth date and in some cases the week of pregnancy. 

However, there are exceptions where different periods can be considered and used for the calculation: 

• If the employment period begins only after the start of the pregnancy, then, according to § 18 Clause 4 MuSchG, the employee's salary is to be calculated from the salary of the first three months.
• If no remuneration was received during the reference period due to an unintended time off, these periods are not taken into account in the calculation pursuant to §s 21 (1) Clause 1 MuSchG. This includes the following situations:
  • Inability to work after the continued remuneration payment has expired 
  • Parental leave without part-time employment 
  • Care of a sick child without entitlement to remuneration
  • Unpaid special leave
  • Care for a family member 
  • Participation in a lawful strike
• If the employment relationship has been for less than three full calendar months, the calculation is made in accordance with § 21 (1) Clause 2 MuSchG on the basis of the actual employment period. 

To determine the maternity protection pay, the total gross salary for the work performed during the reference period must be added up. In addition to the monthly basic salary, this includes, for example:

• Benefits in kind (company car)
• Capital-forming benefits 
• Allowances linked to professional qualifications.

However, the following salary components are not included in the calculation basis: 

• Reimbursement of expenses and benefits based on actual performed work (e.g. dietary allowances, compensations for particular burdens) 
• One-off remuneration according to § 23a SGB IV (for example, anniversary bonuses, vacation compensation, annual extra payment).

Salary reductions made during the reference period, e.g. due to short-time work, lost work or unintended time off from work, are not included in the calculation in accordance with § 21 (2) No. 2 MuSchG. However, according to § 21 (4) MuSchG, permanent changes in the remuneration amount must be taken into account when calculating the average. In the event that there is an increase in remuneration, for example, during or after the calculation period, the entire average is calculated on the basis of the increased earnings. Temporary changes are not considered in the calculation. 

Maternity benefit 

What is the maternity benefit?  

To ensure financial security, pregnant employees with statutory health insurance receive the maternity benefit from their statutory health insurer for the duration of the maternity protection period within the meaning of § 3 (1) and (2) MuSchG and immediately before and after the birth of the child pursuant to § 19 MuSchG. In addition, their employers will, in most cases, grant them a contribution to the maternity benefit, which compensates for the lost net salary. 

Eligibility for maternity benefits 

According to § 19 MuSchG, working women are entitled to maternity benefits if

• they have statutory health insurance and are entitled to receive sickness benefits in the event of an inability to work

or

• they are not receiving remuneration due to a protection period in accordance with § 3 MuSchG. 

Duration and amount of the maternity benefit 

The maternity benefit is usually paid for six weeks before the expected birth date and the birthday itself, and for eight weeks after the actual birth date. In the case of a multiple or early birth, or if a disability is determined soon after the child's birth, the period of entitlement is extended to twelve weeks after the birth. 

The benefit amount per calendar day is calculated based on the data transmitted via the EEL procedure on the average net remuneration per calendar day for the last three months processed in full prior to the start of the protection period. The maximum amount per calendar day is €13, pursuant to § 24i (2) SGB V. If the average net salary of a pregnant employee is less than €390, the maternity benefit is only paid up to this amount. 

Note
According to § 24i (4) SGB V, if your employee receives remuneration that is subject to contributions during the protection period, she is not eligible for the maternity benefit. However, this does not apply to one-off remuneration. 

Employees who do not have statutory or private health insurance

The Federal Office for Social Security (Bundesamtes für Soziale Sicherung) pays the maternity benefit to employees who do not have statutory health insurance or are privately insured through a family insurance policy with a statutory health insurer. The maximum benefit in this case is €210 in total and must be requested from the Federal Insurance Office (www.bva.de). This regulation includes, for example, employees in marginal employment or with private health insurance.

Contribution to maternity benefit

What is the employer's subsidy contribution to maternity benefit?

To ensure that employees do not suffer a financial disadvantage during the protection period, employers are required according to § 20 MuSchG to pay a subsidy contribution to the employee's entitlement. This amounts to the difference between €13 of the daily maximum amount paid by the statutory health insurance or the Federal Office for Social Security and the average daily net salary. 

Employers can have their contributions reimbursed via the U2 contributions of the German Expenditure Compensation Act (AAG). 

Eligibility for the subsidy

The employee is entitled to a subsidy to the maternity benefit if their average net salary per day exceeds the maximum maternity benefit. The employee's insurance status or which institution pays the maternity benefit are irrelevant. The legislator always assumes a maximum of €13 per calendar day. 

The entitlement does not apply if the employee does not make use of their right to a protection period before the birth, continues to work, and receives the same salary as before the maternity protection started. 

Note 
If your employee continues to work and receives a lower salary, they are paid a subsidy in the amount of the difference between the paid remuneration (or at least €13) and the average daily net salary.

If the employment is terminated during pregnancy or during the protection period, the employee receives both the subsidy and the maternity benefit from the responsible health insurer or the Federal Insurance Office. If the employee terminates the employment, the subsidy payment ends.

Calculation of the subsidy

The calculation of the subsidy is similar to that of the maternity protection pay on the basis of § 21 MuSchG.  The subsidy to the maternity benefit corresponds to the difference between the maternity benefit on a calendar day (max. €13) and the daily average net salary of the last three calendar months before the start of the protection period. 

Note 
If your pregnant employee has multiple employers, all their incomes are added up and a prorated subsidy can be claimed from each employer. The amount of income is usually communicated by the respective health insurer. 

As the subsidy is created from the net salary, it is not subject to tax or social security contributions in the payroll. However, the subsidy corresponds to a wage-replacement benefit such as that for short-time work (Kurzarbeitergeld) and is therefore subject to the progression reservation. The employee is therefore required to submit an income tax certificate.

Example

• The pregnant employee's protection period starts on 17.10.
• She is entitled to maternity benefits of €13.00 per day.
• In the last three months, the employee has had the following net earnings: 
  • September €2,031.31
  • August €2,031.31 
  • July €2,248.30 (including €400.00 vacation bonus)

The maternity benefit is calculated by dividing the net remuneration for the last three calendar months by 90. Each month has a value of 30 days. One-off payments are not taken into account.

€2,031.31 x 3 = €6,093.93

€6,093.93 / 90 days = €67.71 per calendar day

The maternity benefit from the health insurer is limited to €13.00 daily. To calculate the subsidy, the difference between the daily net salary and the maternity benefit is calculated: 

€67.71 - €13.00 = €54.71 subsidy per calendar day

Reporting 

Supervising authority

Once an employer is notified of an employee's pregnancy, they must immediately notify the relevant supervising authority (e.g. Gewerbeaufsichtsamt) pursuant to § 27 (1) Clause 1 No. 1 MuSchG.

EEL 03 for maternity protection allowance 

To ensure a smooth payment of the maternity benefit and avoid delays, an EEL notification must be submitted to the applicable health insurer immediately in the month in which the protection period begins. This should be done promptly before the start date of the protection period. In some cases, the health insurer explicitly requests this EEL notification in a letter. This applies to all pregnant employees who are entitled to the maternity benefit from the statutory health insurance provider. 

DEÜV notifications 

An interruption notice is sent when:

• The protection period interrupts the employee's employment that is subject to mandatory insurance contributions for at least one calendar month.
• And the employee is no longer entitled to remuneration because they receive maternity benefits. 

Reporting reason 51 must be stated.