Legal provisions concerning the protection of pregnant women at work

Legislative measures to diminish the risk that work imposes on a pregnant woman and on her unborn child have been introduced in a number of countries and in the European Union over the last two decades. In Finland, legislative protection covers the reproductive health of working men and women.

Background

In some countries - in Denmark and in Canada (Quebec) since 1981 and in Finland since 1991 - a pregnant woman has been entitled to receive publicly paid maintenance allowance if her work results in risks to her foetus or herself (1,2). The employer must try to reduce the estimated risk or try to find a less hazardous work environment for the woman. If this is not possible, the woman may take paid leave without incurring a reduction in her normal maternity leave (Denmark and Finland).

Finland

In Finland, the idea of preventing workplace-related reproductive hazards at the workplace has been integrated into legislation through two different types of laws (3). The legislation on occupational safety obliges the employer to make sure that work conditions are not likely to cause genetic damage to the worker and are not harmful to the unborn baby or to the reproductive health and pregnancy of the worker.

The legislation on special maternity leave allows a woman who is exposed to agents considered harmful to pregnancy or to her offspring to request a transfer to safe work from the beginning of the pregnancy onwards. If such a task cannot be offered, the woman may be entitled to special maternity leave and benefits. A special maternity allowance is paid by the Social Insurance Institution. The risk assessment is done by an occupational physician who knows the workplace and the exposure situation. Written guidelines and expert consultation are available to the workplace physician.

A statute deriving from the law on occupational safety advises the employer on how to minimize risks. Improvements in working conditions and work organization, and the se
lection of the safest possible materials are recommended as primary methods of prevention. Accompanying regulations list agents considered capable of causing genetic damage, of affecting the fertility of the male or the female worker, and of being hazardous to the unborn child or to pregnancy (Table 1).

Table 1. List of agents considered hazardous to the genotype, foetus and reproduction

The regulations and guidelines accompanying the legislation on special maternity leave include a list of agents possibly harmful to pregnancy. Agents considered here as possibly being harmful are the same as those listed in Table 1. For inclusion on the list of agents, strict criteria have been applied. Chemicals whose harmful effects on the foetus or pregnancy have been shown in at least two well-conducted epidemiological studies are included on the list, as are chemicals with warning signs R45, R46 and R47 designated on the basis of occupational, safety and chemical legislation (3). Later, chemicals with the warning signs R49 (carcinogenic when inhaled), R60 and 62 (toxic to fertility) and R61 and 63 (toxic to the foetus during pregnancy) were also included under the regulations. Not only the presence of the chemicals in the workplace but also the exposure level has to be taken into account assessing the need for job transfer or special maternity leave. The guidelines also give suggestions concerning the level of exposure considered harmful (Table 2).

Table 2. The level of exposure which is considered potentially harmful during pregnancy.

*1) Finnish occupational hygienic reference value

*2) The Finnish reference value for the exposure of the general population.

Physically heavy work or work involving ergonomically poor positions is not included in the special maternity leave regulations in Finland.

If the woman is not satisfied with the risk assessment, she can ask another physician for a second opinion. If she is not satisfied with the decision on her special maternity leave, she can appeal to the Board of Social Insurance Institution or, taking the case further, to the Appeal Tribunal.

European Community

Directive 92/85/EEC identifies pregnant workers and workers who have given birth recently or are breastfeeding as group of workers facing specific risks in the workplace (4). The Directive provides that the employer must make an assessment of the workplace and the work of pregnant or breastfeeding women and women who have recently given birth. If the assessment reveals a risk to health and safety, all reasonable steps must be taken to ensure that the risk is avoided.

The employer is required to take the necessary steps to alter the work environment in order to avoid the risk. If this is not possible, the employee is to be transferred to another job not involving risk. If transferring her is not feasible, the worker is to be granted leave in accordance with the national legislation or national practice; for example, special maternity leave (4).

Pregnant women cannot be discharged for pregnancy-related reasons or forced to work if this will damage their health. Non-exhaustive lists of agents and working conditions considered to be harmful are provided (Table 3).

Table 3. Annexes I and II of Directive 92/85/EEC.

Non-Exhaustive List of Agents, Processes and Working Conditions referred to in Article 4

ASSESSMENT AND MEASURES REQUIRED

EXPOSURE OF PREGNANT OR BREASTFEEDING WORKERS IS PROHIBITED

Non-exhaustive list of agents and working conditions referred to in Article 6.

Pregnant workers

Workers who are breastfeeding

The Member States were obligated to enforce the Directive within two years after its adoption. Before the Directive was adopted, all Member States had some form of protection for pregnant workers, although it varied considerably. In some countries, the protection provided was higher than that required by the Directive, whereas in others the Directive had the effect of increasing the health and safety protection and the employment rights of pregnant workers (5).

Experience

In both Denmark (c. 1% of pregnant women) and Finland (0.1%), fewer pregnant women than expected have been taking advantage of special maternity leave (1). The difference between the two Nordic countries as far as the taking of special maternity leave is concerned derives partly from the fact that physical strain is accepted as a reason for the granting of such leave in Denmark, but not in Finland. In Quebec, nearly four out of ten pregnant women benefit from preventive reassignment measures (2). In Finland the number of mothers taking advantage of special maternity leave did not increase during the period 1992-97. In about one third of the risk assessment processes in Finland, no risk has been found (6). In Finland, the main reason for the granting of special maternity leave has been exposure to organic solvents. Further reasons have been other industrial chemicals, radiation and anaesthetic gases (1).

The report on the implementation of Directive 92/85/EEC concludes that the Directive has generally been well implemented by the Member States, most of them having amended their legislation to take specific account of pregnant workers and the non-exhaustive list of agents, processes and working conditions given in the Directive (5).

The legislation not only benefits expectant mothers but also focuses attention on workplace safety in general, thus benefiting all workers. If the workplace is safe for pregnant women, it is safe for other workers as well. The real solution is to decrease the exposure of female and male workers to reproductive toxicants, not only to protect already pregnant women. However, international experience shows that employers tend to take the easy way out, not reducing risks at the workplace but giving women new tasks or avoiding the problem through the expediency of special maternity leave or sick leave. When occupational exposure limits are established, reproductive toxicity should be also taken into account. This would help in avoiding discrimination against women because of their reproductive capacity.

References

1. Taskinen H, Olsen J, Bach B. Experiences in Developing Legislation Protecting Reproductive Health. Am C Occup Environ Med 1995;37:974-9.
2. Plante R, Malenfant R. Reproductive Health and Work: Different Experiences. J Occup Environ Med 1998;40:964-8.
3. Taskinen H. Prevention of reproductive health hazards at work. Scand J Work Environ Health. 1992;18 (Suppl 2):27-9.
4. The Council Directive 92/85/EEC of October 19,1992: the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding. Official J Eur Commun. 1992;Nov:L 348/1-8.
5. Report from the Commission on the implementation of Council Directive 92/85/EEC, Brussels, 1999.
6. Taskinen H, Virtanen S. Abstracts; PREMUS-ISEOH '98; 13th International Symposium on Epidemiology in Occupational Health:1998; p. 271.

Finnish Legislation

Act on Occupational Safety 27/1987

Decree of the Council of State 1043/1991

Decree of the Ministry of Labour 1044/1991

Act on Sickness Insurance 1192/1990

Ordinance on Sickness Insurance 717/1991

Decree of the Ministry of Social Affairs and Health 931/1991

Heikki Frilander
Finnish Institute of Occupational Health
Topeliuksenkatu 41 a A
00250 Helsinki
Finland
E-mail: Heikki.Frilander@occuphealth.fi

Helena Taskinen
Finnish Institute of Occupational Health
Topeliuksenkatu 41 a A
00250 Helsinki
Finland

Asian-Pacific Newsletter 2/1999 p.39-41