Maternity protection at work

What is maternity protection at work?

Pregnancy and breastfeeding are not illnesses, but certain working conditions that are acceptable to the general population can pose a risk to the worker, the fetus, or the infant: chemical agents with reproductive effects, biological agents, ionizing radiation, manual handling of loads, awkward postures, noise, vibrations, night or shift work, extreme heat and cold, or the risk of blows. Regulations require anticipating this situation through a specific assessment and implementing phased measures to ensure safe continued employment.

Article 26 of Law 31/1995 establishes a sequence: the risk assessment must include determining the nature, degree, and duration of exposure of pregnant or recently postpartum workers to agents, procedures, or working conditions that could negatively affect their health or that of the fetus. If the results reveal a risk, the employer must take the necessary measures to prevent exposure by adapting working conditions or hours, including prohibiting night work or shift work. When adaptation is not possible or does not eliminate the risk, and this is certified by the medical services of the National Social Security Institute (INSS) or the mutual insurance company with a report from a physician of the National Health Service, the worker is transferred to a compatible position; if no such position exists, the contract is suspended with the corresponding financial benefit. The same rules apply during breastfeeding until the child reaches nine months of age.

The protection is completed with the labor guarantees of the Workers’ Statute (nullity of dismissal except for proven cause, permits, adaptation of working hours) and with the prohibition of certain jobs included in Annex VIII of Royal Decree 39/1997.

Specific preventive obligations

• Specific risk assessment. Include in the assessment of all positions occupied or likely to be occupied by women the identification of the agents, procedures and conditions of Annex VII of Royal Decree 39/1997 (non-exhaustive list) and of the prohibited jobs of Annex VIII, with conclusions for each position on their compatibility with pregnancy and breastfeeding.
• List of risk-free positions. The employer must determine, after consulting with the workers’ representatives, the list of jobs that are risk-free for these purposes, which serves as a reference for job changes.
• Adaptation. Modify tasks, times, breaks, shifts, exposure and equipment to eliminate the risk, with the corresponding documentation.
• Change of position. To a compatible position within their professional group or equivalent category; if none exists, to another non-corresponding position, maintaining the original remuneration.
• Suspension of the contract. Risk during pregnancy or during breastfeeding (articles 186 to 189 of the General Social Security Law), with a subsidy of 100 percent of the regulatory base for professional contingencies, charged to the mutual insurance company or the INSS, after medical certification.
• Information. The worker must know the risks of the job and the procedure for communicating her situation; the company cannot demand communication, but can only act when it is aware of it.
• Health surveillance. Specific protocol with the prevention service, respecting confidentiality.

Regulatory framework

• Law 31/1995, articles 25 and 26. Protection of especially sensitive workers and maternity.
• Royal Decree 39/1997, Annexes VII and VIII. Non-exhaustive list of agents, procedures and conditions that may negatively influence the health of pregnant or breastfeeding workers, and list of agents and conditions to which there may be no exposure.
• General Social Security Law, articles 186 to 189. Benefits for risk during pregnancy and for risk during breastfeeding.
• Royal Decree 295/2009. Regulation of economic benefits for maternity, paternity, risk during pregnancy and during breastfeeding.
• Directive 92/85/EEC. Measures to promote improvements in the safety and health of pregnant workers, workers who have recently given birth or are breastfeeding.
• INSST Guidelines. Guidelines for risk assessment and maternity protection at work and NTP 992 on the prevention procedure in companies.

Organizational application: how to manage maternity protection

1. Include in the risk assessment of each position a specific section on pregnancy and breastfeeding with the agents and conditions of Annexes VII and VIII and the conclusion of compatibility.
2. Prepare and consult with representatives on the list of risk-free positions and keep it updated.
3. Establish a procedure for voluntary and confidential communication of pregnancy or breastfeeding status and immediate response from the company.
4. Apply the sequence of measures: adaptation, change of position and, if applicable, processing of the suspension with the medical certification of the mutual insurance company or the INSS.
5. Coordinate with the prevention service the health surveillance and follow-up during pregnancy and breastfeeding.
6. Train managers and human resources in the procedure and in labor guarantees.
7. Record actions confidentially and review the evaluation in case of changes in position or process.

Preventive management software allows you to identify compatible positions, manage the adaptation and change procedure with traceability and restricted access, and plan the evaluation reviews.

Limits and common mistakes

1. Not assessing maternity risks until a worker reports her pregnancy, instead of having them planned for in the assessment of each position.
2. Going directly to suspension of the contract without attempting adaptation or a change of position.
3. Lack of the list of risk-free positions consulted with the representatives.
4. Confusing pregnancy risk benefits with temporary disability due to common contingencies.
5. Forgetting protection during breastfeeding and night or shift work.
6. Treating the situation without confidentiality or making decisions that may constitute discrimination.

The assessment of the situation and access to the benefit correspond to the medical services of the mutual insurance company or the INSS; this sheet is for informational purposes.

Regulatory framework in Spain

• Law 31/1995, article 26. Maternity protection: evaluation, adaptation, change of position and suspension of contract.
• Royal Decree 39/1997, Annexes VII and VIII . Agents, procedures and risk conditions and prohibited work during pregnancy and breastfeeding.
• Royal Legislative Decree 8/2015, General Social Security Law, articles 186 to 189. Benefits for risk during pregnancy and during breastfeeding.
• INSST guidelines for risk assessment and maternity protection at work . Technical criteria by agent and working condition.
• Council Directive 92/85/EEC of 19 October 1992. Safety and health of pregnant workers, workers who have recently given birth or are breastfeeding.

In Colombia, maternity protection is structured through the maternity protection of the Substantive Labor Code and the obligations of the SG-SST; in other countries, through specific equality and social security regulations.