|Maternity Protection at Work: Revision of the Maternity Protection Convention (ILO, 1997, 122 p.)|
|1. Maternity protection at work|
|3. Maternity leave|
|4. Employment protection|
|5. Cash and medical benefits|
|6. Health protection of mother and child|
|7. Beyond childbirth: Parental, paternity and adoption leave|
|8. Looking to the future|
Pregnancy, childbirth and the postnatal period are three phases in a womans reproductive life in which special health risks exist and special workplace protections are required. Regular medical supervision and, when needed, the adaptation of the womans activities in line with her condition may greatly reduce the specific risks to her health, enhance the probability of a successful outcome to the pregnancy and set the stage for the healthy development of the child.
The Maternity Protection Convention (Revised), 1952 (No. 103), devotes considerable attention in Articles 4 and 5 to the health aspects of maternity protection, providing for the material support of mother and child through cash benefits and medical care. Medical benefits include prenatal, confinement and postnatal care by qualified mid-wives or medical practitioners as well as hospitalization care where necessary. These provisions cover three of the four pillars on which the World Health Organization has based its policy recommendations regarding safe motherhood, i.e. family planning, prenatal care, clean and safe delivery, and essential obstetric care. These four types of strategic interventions demonstrably reduce the incidence of maternal mortality and morbidity and improve the survival rates and health status of newborns.
The Maternity Protection Recommendation, 1952 (No. 95), provides guidance on the protection of health of employed women with regard to conditions of work. It prohibits night work, overtime and work prejudicial to the health of mother and child. Such measures seek to minimize fatigue, reduce physical and mental stress and protect women against dangerous or unhealthy work. The right to transfer away from work harmful to health is provided in paragraphs 4 and 5.
These and other provisions are widely reflected in national legislation protecting the health of employed women before and after childbirth. Legislative provisions tend to fall into three main categories. The first concerns the protection of maternity per se, usually through the granting of leave, the provision of cash and medical benefits, and the strengthening of employment security. The preceding chapters have reviewed these types of protection.
Occupational safety and health legislation offers protection with regard to the conditions of work of pregnant women and nursing mothers. Protective measures often include prohibitions or restrictions which limit the types of work available to women or prevent exposure to harmful substances or processes. Foetal protection policies are frequently implicit, and sometimes explicit, in such prohibitions and restrictions, which seek to protect the unborn child from workplace hazards. The adaptation of working time and/or the modification of duties, the right of temporary transfer to alternative work or, in some cases, the extension of leave are often addressed. Law and practice regarding working time arrangements, adaptation of duties, and protection from unhealthy or dangerous work for pregnant women and nursing mothers form the first focus of this chapter.
A third health concern is evident in national law which protects, and in some cases promotes, breast-feeding. Legislative provisions relative to employed women establish the right to nursing breaks during working time and may encourage, if not require, employers to provide appropriate facilities to this effect. The right to paid nursing breaks and the need for facilities for nursing care are addressed in Convention No. 103 (Article 5) and its accompanying Recommendation No. 95 in Section III, (2) and (3). This chapter concludes with a review of national law and practice regarding nursing breaks and nursing facilities for working mothers.
Occupational safety and health: New approaches towards protection
Three major trends have marked changes in law and practice concerning the occupational safety and health of pregnant women and nursing mothers since the adoption in 1952 of Recommendation No. 95. The most fundamental of these has been the clear evolution away from the generalized employment prohibitions for women, which marked the first half of the century, toward more targeted protection for groups at special risk, for example, women before and after childbirth. This new approach has developed in response to three main factors: general improvements in the safety of industrial working environments, wider participation by women in all aspects of economic life, and the ongoing redefinition of male and female social roles. The basic challenge inherent in this approach has been to reconcile the principle of equality of treatment between men and women with the responsibility of protecting pregnant women and nursing mothers from the workplace dangers which specifically affect them. An important aspect of resolving any apparent conflict in these goals has been the recognition that the adaptations which may be needed in working conditions and working time arrangements are not dissimilar to those required in the event of illness, temporary disability or some other limiting condition which may potentially arise in the working life of any employee.
Another trend, closely related to the first, has been the move toward protective measures better adapted to the needs and personal preferences of individual workers at different periods in their working life. Rather than imposing involuntary restrictions on certain types of work for wide categories of workers, such as women of child-bearing capacity, employers are called upon to make assessments of workplace risks and appropriate adjustments in the conditions of work on a case-by-case basis. Greater discretion is left to individual workers to accept or refuse assignments or to request transfer due to considerations of reproductive health. In order to ensure informed consent, mechanisms for fuller information-sharing between employers and workers and their organizations are of vital importance. Indeed, the success of such an approach relies heavily on the quality of information available to employers and workers and their capacity to use this knowledge in decision-making.
The last 45 years have also witnessed a growing awareness of the impact of the working environment on reproductive health and of the negative outcomes to pregnancy associated with both maternal and paternal exposure to hazardous substances, agents and processes. This recognition has resulted in a reorientation of safety and health legislation in some countries from protection aimed solely towards pregnant women, nursing mothers or women in their child-bearing years to the protection of both men and women workers from reproductive hazards at the workplace. Equal weight is assigned to ensuring equality of treatment with regard to employment rights and to meeting the needs of all workers with regard to safety and health. Rather than simply removing the protection afforded to women due to their child-bearing capacity, the aim is to reduce or eliminate the risk as far as possible, raise the level of protection for both sexes and provide transfer options for both men and women exposed to reproductive health hazards, when necessary.1
By the mid-1970s, a number of countries had begun to review protective legislation applying to women to determine whether the protection provided was justified on scientific grounds and should thus be retained, or whether legislative provisions needed to be revised, supplemented, extended or repealed. As to ILO standards, the resolution on equal opportunities and equal treatment for men and women in employment, adopted by the International Labour Conference in 1985, requested that protective instruments be reviewed periodically to determine whether their provisions are still adequate and appropriate in the light of experience acquired since their adoption and of scientific and technical information and social progress. The Protocol adopted in 1990 to the Night Work (Women) Convention (Revised), 1948 (No. 89), and the Night Work Convention, 1990 (No. 171), adopted in the same year, were among the first fruits of this ongoing review process. A closer examination of these two instruments reveals elements of the new approach to safety and health which has gained favour in recent years: targeted protection during specified periods, the possibility of temporary transfer to alternative work or, if such work is not available, an extension of leave.
The Maternity Protection Recommendation, 1952 (No. 95), provides in Paragraph 5 (1) that night work and overtime work should be prohibited for pregnant and nursing women and their working hours should be planned so as to ensure adequate rest periods. It embodies the protective approach to womens employment at night adopted in the Night Work (Women) Convention (Revised), 1948 (No. 89), while extending the prohibition beyond industrial undertakings.
Since 1952, few protective measures with regard to womens employment have proven as controversial or have been the object of such extensive revision as those concerning night work. Of the 65 ILO member States which have ratified the Night Work (Women) Convention (Revised), 1948 (No. 89), 15 have since denounced it and two others have ratified the 1990 Protocol which provides for certain exceptions.2 One of the sources of controversy has been the recognition that the general prohibition of night work by women has been discriminatory in effect. Yet, in many countries, removal of protection could in practice aggravate womens working conditions, exposing them to longer hours of work and low pay while increasing their exposure to harassment, notably in transport to and from work at night. The prohibition of night work has prevented access by women to the full range of night jobs, while the derogations granted have tended to apply to heavily feminized, low-paying sectors and occupations. Finding the balance between equality of treatment and the need for special protection has been the challenge. The prohibition of night work restricted the freedom of women to adapt their work schedules according to their personal preferences and family circumstances, but reducing night work to a minimum for both male and female workers is deemed by many to be preferable to simply removing the limitations on night work for women.
The Night Work Convention, 1990 (No. 171), does not prohibit night work for pregnant and nursing workers. It provides instead in Article 7 that measures shall be taken to ensure that an alternative to night work is available to women night workers before and after childbirth, for a period of at least sixteen weeks, and for additional periods if necessary for the health of the mother or child. Transfer to day work, the provision of social security benefits or an extension of maternity leave are among the measures mentioned.
A 1987 survey carried out by the ILO3 revealed that only some 20 countries had no legislation prohibiting night work by women. Among these were Antigua and Barbuda, Denmark, Haiti, Qatar and Uganda. In a number of countries, including Barbados, Ireland, Israel, Spain and Suriname, laws prohibiting night work by women workers have been repealed, mostly since the mid-1970s. In Australia and the United States, for example, both federal and most state legislation on the subject has been repealed.
In a small number of countries, night work is prohibited for both men and women with specified exceptions. In Belgium and Switzerland, exemption possibilities are broader and more easily obtainable for men than for women, while in Norway and Sweden, the sex of workers is not a consideration in the treatment of exempted occupations. In the Netherlands, a 1986 law has brought exemption possibilities for women closer to those applicable to men.
Between these two poles, i.e. the absence of prohibition for either sex and the general prohibition for both sexes, lie the varied legislative approaches regulating night work for women or for pregnant women and nursing workers which are found in the vast majority of ILO member States. Indeed, despite the controversy attached to night work prohibitions, many countries continue to restrict the employment of women at night. In approximately one-quarter of the countries examined, a general prohibition applies to all economic sectors, although exemptions are frequent in respect of agriculture, health establishments, hotels, restaurants and bars, and public entertainment. Night work is prohibited for women in industry in one-third of the countries examined.
Where an extensive prohibition of night work applies, special provisions for pregnant women or nursing mothers are required only to the extent that the legislation provides for significant possibilities for exemptions or exceptions. For example, in Italy, exceptions to the prohibition of night work by women in industry, whether provided for under legislation or negotiated under collective agreements, cannot apply to women during pregnancy or up to seven months after confinement. Other countries which disallow certain exceptions for pregnant or nursing women include Angola, Austria and Romania.
In nearly 10 per cent of the countries surveyed, night work is prohibited or regulated only in connection with maternity. The scope of the occupations covered is then often large. The prohibition of night work is limited to pregnant women in Albania, Chile, China, Cuba, Panama and Singapore. This prohibition often extends to a period following the return to work and is sometimes linked to the fact that the woman is nursing her child, as in Afghanistan, Bulgaria, Hungary, Mongolia and the Russian Federation. In Mozambique, for example, night work is prohibited from the fifth month of pregnancy through the first six months of nursing.
The prohibition of night work by pregnant women may apply as soon as the pregnancy is known, as in Chile and Ethiopia, or may concern only a later period, e.g. the three months before the expected date of delivery, as in Lesotho. However, in some cases, as in Namibia, the period during which the woman may not work at night may be extended if requested by a physician.
In some countries, such as Japan, night work is not prohibited. Instead, if a pregnant or nursing worker so requests, she will not be required to work at night. In Israel, the refusal by women with family responsibilities to work at night may not constitute grounds for non-recruitment or dismissal. In Singapore, when night work is subject to a womans request or consent, a medical certificate may be required to confirm that the woman is fit to work at night.
The European Union provides in Council Directive 92/85/EEC of 19 October 19924 that member States must take measures to ensure that women are not obliged to perform night work during pregnancy or for a period following childbirth, subject to submission of a medical certificate. Measures undertaken in member States must entail the possibility of transfer to daytime work or, where such a transfer is not technically and/or objectively feasible or cannot reasonably be required on duly substantiated grounds, leave from work or the extension of maternity leave.
Adaptation of working time arrangements
Pregnant working women should be protected from prolonged working hours and poorly or irregularly planned working schedules, which leave insufficient time for adequate rest, according to a WHO statement on health standards for maternity protection of working women.5 These concerns are echoed in Paragraph 5 (1) of Recommendation No. 95, which prohibits overtime and states that working hours should be planned so as to ensure adequate rest periods.
The prohibition of overtime work by pregnant women is common to a number of countries, for example, Chile, Equatorial Guinea, Republic of Korea and Panama. In certain cases, the prohibition extends to nursing mothers, as in Austria, Belgium and Germany, or to women whose child is below a certain age, as in Afghanistan, China, Cuba, Ghana, Hungary, Lao Peoples Democratic Republic and Yemen. In a few countries, the prohibition of overtime is not absolute, but applies only if such work will endanger the womans health. In Poland, pregnant women and women with children below a given age may not be required to work overtime, but may do so with their own consent.
Other working time restrictions, though fairly frequent, have so far proven less controversial than those concerning night work, perhaps because they are seen as legitimate for health and safety reasons or because they enable workers to achieve balance between their professional and family responsibilities. These include provisions regarding weekly rest and work on public holidays. Specific provisions regarding weekly rest of women have been found in some 20 countries. Most commonly, these prohibit exceptions to weekly rest in the case of pregnant and nursing workers. A few countries have established an absolute prohibition in respect of work on Sundays or public holidays, as in Austria, Cambodia and Guyana.
The right to part-time work upon request coupled with the right to return to full-time work at a later time might benefit workers who wish to remain professionally active during pregnancy and nursing, yet require shorter working hours to avoid excessive fatigue. Many working women still carry the double burden of a full-time workday combined with major time commitments at home. The World Health Organization notes that, when making accommodation for pregnancy and recent birth, the totality of a womans workload must be taken into account, including household work and child care.
Legislative provisions concerning the right to part-time work on request have been identified in only a few countries. They apply to all women in Belarus, to nursing mothers (civil servants) in Uruguay and to mothers with children under six years of age in Romania, if no day nurseries are available. In Croatia, a mother can work half-time until her childs first birthday; for twins or the third or subsequent child, the woman may work half-time for up to three years. In Mongolia, part-time work is granted only to pregnant women who present a medical certificate.
Recognition of the desirability and feasibility of shorter hours is fairly widespread, however, as evidenced by the fact that in practice employers in a number of countries permit nursing workers to convert the time allotted for nursing breaks into time off at the start or finish of the working day. This allows for late arrival or early departure from the workplace.
Regular prenatal examination offers the opportunity to screen the woman for risk factors which might require specific medical attention, to monitor her health throughout the course of the pregnancy, and to detect and treat potentially life-threatening conditions at an early stage. Given the importance of regular health monitoring during pregnancy, many countries provide employed women with time off from work for prenatal medical examinations.
The 1992 European Directive and its implementing legislation illustrate this approach. In France, medical consultations during pregnancy are compulsory and the time spent is counted as hours worked for the calculation of paid leave and seniority rights. In Portugal, the provision is made for time off as long and as often as necessary for prenatal care. In some countries, however, the right to time off may be limited to cases when it is not possible to schedule the examination outside working hours, as in Poland. In others, a medical certificate may be required, as in Ethiopia.
The law does not normally specify the amount of time off available to pregnant women. Cuba, however, grants six full days or 12 half-days for prenatal medical and dental care up to the 34th week of pregnancy. Turkey grants time off at least once a month after the first three months. In Japan, the employer must endeavour to make arrangements to enable the woman to have the necessary time off for health guidance and medical examinations once every four weeks up to the seventh month of pregnancy. In Israel, however, a maximum is prescribed: a womans absence may not exceed a total of 40 hours during her pregnancy if she works more than four hours each day, or not more than 20 hours if she works less.
Adaptation of duties, transfer, leave
The adaptation of working time is among the most widespread and the easiest accommodations for employers to make to meet the needs of pregnant workers and nursing mothers. Adjusting an employees work schedule to avoid the excessive fatigue associated with night work and overtime work provides targeted protection during specified periods and may be adapted to individual circumstances with relative ease. Indeed, many such arrangements are agreed on an informal basis every day. For more serious safety and health risks, however, temporary transfer to alternative work or, if such work is not available, an extension of leave provides the greatest security.
The Maternity Protection Recommendation, 1952 (No. 95), states in Section V.5 (2) that employment of a woman on work prejudicial to her health or that of her child, as defined by the competent authority, should be prohibited during the pregnancy and up to at least three months after confinement and longer if the woman is nursing her child. Section V.5 (3) provides a non-exhaustive list of the type of activities falling under the provisions of V.5 (2). Subparagraph (4) of the same section provides that a woman ordinarily employed at work defined as prejudicial to health by the competent authority should be entitled without loss of wages to a transfer to another kind of work not harmful to her health. Subparagraph (5) further states that such a right of transfer should also be given for reasons of maternity in individual cases to any woman who presents a medical certificate stating that a change in the nature of her work is necessary in the interest of her health and that of her child.
The European Union has developed a clearly structured process for dealing with occupational risks in general and the specific risks affecting pregnant workers, those who have recently given birth and those who are breast-feeding. Workplace risks include chemical, physical and biological agents and industrial processes considered to be hazardous for the safety or health of pregnant and nursing workers as well as working conditions involving unsafe movements and postures, mental and physical fatigue and other types of physical and mental stress. The EU Directive provides for the establishment by the European Commission of guidelines to enable employers to assess the nature, degree and duration of exposure of workers to workplace risks. It is then incumbent upon employers to assess health and safety risks, to decide what measures should be taken, and to inform workers and/or their representatives of the results of the assessment and of the measures necessary.
If a workplace risk is identified, the employer shall, in the first instance, temporarily adjust the working conditions and/or the hours of work of the employee concerned in order to avoid exposure to the risk. If such an adjustment is not technically and/or objectively feasible, or cannot reasonably be required on duly substantiated grounds, the employer shall move the worker to another job. If such transfer is not technically and/or objectively feasible, or cannot reasonably be required on duly substantiated grounds, the worker shall be granted leave for the whole of the period necessary to protect her safety or health.6
Dangerous, arduous or unhealthy work
The legislative approaches adopted in ILO member States with regard to dangerous, arduous or unhealthy work vary widely. They range from a general prohibition of such work for all women workers to sectoral or occupational restrictions, restriction of exposure to particular substances or agents, and targeted restrictions applicable solely to pregnant and nursing workers. Only a few countries have tackled the issue of risks to the reproductive health of both men and women workers and research in this area is still in its early stages. Nonetheless, as scientific evidence accumulates with regard to the negative outcomes of pregnancy due to paternal exposure, particularly to ionizing radiations and certain hazardous chemicals, it appears likely that the regulation of reproductive health risks for both sexes will be the subject of future action.
Employment prohibitions or restrictions on account of the dangerous, arduous or unhealthy nature of the work have been identified for women workers in about 100 countries. In roughly half of these, the legislation contains a general prohibition, typically applicable to all sectors of economic activity, against women being employed in such work. In almost 90 countries, a legal prohibition in respect of underground work for women workers has been established, although this activity may be included in the definition of dangerous, arduous or unhealthy work applied in other countries as well. Regulations restricting the manual lifting, carrying, pushing or pulling of loads by women have been identified in more than 50 countries and are usually applicable to all activities and sectors.
In about 20 countries, the law simply empowers the competent authority to issue regulations concerning the types of dangerous, arduous or unhealthy work to be prohibited to women. In others, legislation contains a more or less detailed list of activities prohibited to women. The most common of these are the loading and unloading of ships; oiling, cleaning or repairing of machinery in motion; working in places where the dangerous parts of machinery are not suitably protected; work in compressed air caissons; transport on pedal tricycle carriers; manufacture or handling of explosives; and the operation of pneumatic tools or other machines causing vibrations. A few countries prohibit employment of women under water or in extreme heat or cold. Other activities prohibited to women involve the production of dust or irritant poisonous or toxic substances, or the risk of disease, including work in tanneries, the production of fertilizers, gilding and silvering, the manufacture of sulphates, and the manufacture and processing of lead. As noted in the review of night work provisions, such general prohibitions may be discriminatory in effect and thus merit re-examination in the light of new knowledge and improved technology as well as with regard to equality of treatment. The aim should be the elimination of the risk or its reduction to the greatest extent possible, raising the level of protection for all workers, regardless of sex.
A number of countries prohibit in general terms the employment of women in work or processes involving exposure to hazardous agents or toxic substances, although in some cases this protection is limited to pregnant women. Specific provisions on work involving exposure to lead and its products, benzene and ionizing radiations are quite common. Those provisions concerning exposure to lead products were usually adopted much earlier than those relating to benzene or radiation protection, and the latter tend to distinguish more precisely between prohibitions and limitations placed on all women and those placed on pregnant women or on women of reproductive age. Work involving exposure to lead and its products is prohibited to all woman in many countries, including China, Luxembourg and the United Arab Emirates. Only exceptionally is its scope limited to pregnant or nursing women, as in Belgium and Sweden, or to women of reproductive age. In contrast, the employment prohibition relating to exposure to benzene is usually limited to pregnant or nursing women as in France, Guinea, Poland and Spain.
As regards work involving radiation exposure, the number of cases where such work is prohibited, either to women in general or to pregnant or nursing women, is very limited. Most provisions simply set maximum exposure limits at lower levels for women of reproductive age than for male workers, as in Canada, Ecuador and Venezuela, and even lower levels apply to pregnant women, as in Brazil, Greece, Japan, Switzerland, Tunisia and the United Kingdom. Internationally agreed guidelines on protection against radiation state that notification of pregnancy should not be considered a reason to exclude a female worker from work. Instead, the employer should adapt the working conditions in respect of occupational exposure to ensure that the embryo or foetus is afforded the same broad level of protection required for members of the public. The guidelines also state that employers shall make every reasonable effort to provide alternative employment when a worker may no longer continue in employment involving occupational exposure. In addition, employers must provide female workers with appropriate information on the risks of exposure during pregnancy to the foetus or embryo; the importance of early notification of pregnancy; and the risk to an infant of ingesting radioactive substances through breast-feeding.7
Exposure to toxic chemicals, biological agents, heavy metals and ionizing radiations are a source of deep concern to workers of child-bearing age, since it has been linked to an increased incidence in spontaneous abortion, stillbirth, foetal malformation and childhood cancer. The mutagenic, teratogenic, carcinogenic and embryo-toxic effects of such substances occur at different stages in pregnancy, and in some cases, pre-pregnancy exposures of either parent may be implicated in negative outcomes.
A survey carried out in the United States in 1983 found that workers were exposed to more than 1,100 chemicals which had been identified as hazardous to reproductive health. These included various heavy metals, pesticides, organic solvents, waste anaesthetic gases and some anti-cancer drugs. Unfortunately, however, reliable information on the reproductive health impact of many substances trails far behind the expansion in their use in the workplace. Most of the 70,000 chemicals currently in commercial use have never been tested to assess their effects on human reproduction or other hazardous characteristics, according to the Occupational Safety and Health Administration of the United States.8 This is clearly an area worthy of further study.
Targeted protection for pregnant women and nursing mothers
In many countries, the law provides that pregnant women and nursing mothers may not be allowed to do work that is beyond their strength, which involves hazards, is dangerous to their health or that of their child, or requires a physical effort unsuited to their condition. Such general prohibitions, however, can present problems of implementation in the absence of a clear, agreed methodology for the determination of the degree of exposure associated with a particular job and an individual womans capacity to perform the work without risk to her health or that of her child. The respective roles of the employer, the labour inspector, the occupational health physician, the womans doctor and the worker herself must be defined in order to guarantee the protection of the worker and her child.
The modification of work duties is one approach to dealing with jobs which require great physical effort. Some 20 countries apply stricter regulations with regard to the manual transport of loads by pregnant women and new mothers than for women in general. These are very common in French-speaking countries of Africa, where women during pregnancy and within three weeks after their return to work following childbirth are prohibited from carrying any load.
In many countries, pregnant women and nursing mothers employed in dangerous or unhealthy work are entitled to transfer to another type of work or to have their employment terminated with compensation pay in lieu of notice when the work they are performing is medically determined to be beyond their strength or detrimental to their health. Transfer may also be available from work that is not dangerous in itself but which a medical practitioner has certified to be harmful to a particular womans state of health, as in France. In Canada and Switzerland, a transfer is possible at the request of the worker concerned. Where the law enables the employer to suggest a transfer, if there is a disagreement between the employer and the worker, an occupational physician will determine whether there is any medical need for changing jobs and whether the worker is fit to take up the job that has been suggested to her. Usually, either the labour inspector or the woman herself is empowered to request such a medical evaluation.
Transfer options for both men and women exposed to reproductive hazard have been adopted in the European Union, Finland and the United States, among others. Such transfer policies must be implemented without penalty in terms of pay and seniority and should provide the right to reinstatement when the overriding need for protection has ceased to exist.
Early notification of pregnancy is essential to enable employers to adapt the womans working conditions appropriately or to reassign her to less hazardous work. However, unless a woman is confident that her employment is secure, she may wish to disclose her condition as late as possible. Some women observe that knowledge of her condition might adversely affect her treatment on the job or result in dismissal. Unfortunately in many workplaces today transfer options do not exist and pregnant women may be fired from their jobs rather than provided with alternative, non-hazardous work. Economic necessity may cause pregnant women to stay on the job, despite the risks entailed.
A further consideration is that providing early notification of pregnancy constitutes an invasion of privacy. A recognition of the right to privacy is implicit in the legislation of Venezuela, where it is unlawful for an employer to submit a woman to pregnancy tests, but a woman may request such tests to be made if she wishes to avail herself of the protective measures available to pregnant women. The risks inherent in particular work settings and the benefits of early notification need to be assessed in order to establish the appropriate balance between the need for protection and the right to privacy.9
In a few countries, precautions are taken to ensure compliance by the employer with safety and health obligations towards pregnant workers. For example, in Austria, the employer is required to notify the labour inspector or another competent labour protection authority of a workers pregnancy. In Paraguay, the law requires the Social Security Institute or the Ministry of Public Health to countersign the medical certificate. In Brazil, the employer must countersign the certificate, which serves to prove that he or she was duly informed of a workers condition.
The EU Directive states in its preamble that measures concerning the protection of health of pregnant and nursing workers would serve no purpose unless accompanied by the maintenance of rights linked to the employment contract, including maintenance of payment and/or entitlement to an adequate allowance.
A number of countries seek to ensure that transfers due to health and safety reasons do not unduly prejudice a workers earnings or employment rights. Often the law states that the worker must retain her former salary even if the salary of the post she is transferred to is lower. In the Lao Peoples Democratic Republic, the woman keeps her former salary during a three-month period, and is then paid at the rate corresponding to the job she is actually performing. In the Russian Federation, where a suitable post is to be given to a woman who can no longer perform her regular work, she retains her salary during the period in which a new post is being sought. In Romania, the difference between the two salaries is paid by social security, an arrangement which avoids the cost of maternity protection being borne by individual employers. France is among the countries which stipulate that the transfer is temporary and that the worker must be reassigned to her former job when she returns from maternity leave or at a specified time thereafter.
Towards a mother-friendly workplace
The promotion of breast-feeding has become a part of national and international health policy for compelling medical reasons. Exclusive breast-feeding can contribute to significantly reducing the incidence, severity and duration of common illnesses among new-borns, in particular upper respiratory infection, gastrointestinal infection and otitis media. Indeed, medical authorities recognize exclusive breast-feeding, beginning immediately after birth and continuing for four to six months, as the optimal means of ensuring the full and healthy development of the child.10 Breastmilk is a complete and balanced food and contains both antibodies and antibiotic properties which provide important immunological protection against infection.
The health benefits of breast-feeding for mothers are also being increasingly recognized. These include immediate benefits, such as a reduction in postpartum haemorrhage and a more rapid return to normal weight. In the medium term, exclusive breast-feeding results in a temporary reduction in fertility, which contributes to child-spacing. In the long term, there is a lower lifetime risk of breast cancer and ovarian cancer for mothers who breast-feed their infants.11
While these health benefits are important in themselves, they are matched by economic returns at the national and enterprise levels as well as in the family budget, when breast-feeding is supported in policy and practice through public health services, employers willing to accommodate the needs of nursing mothers and by women who decide to combine their return to work with their desire to nurse their children.
At the national level, the economic impact is mainly felt in reduced demand for curative health services for mothers and babies and the productivity gains derived from a healthy labour force. These are important factors since women in their child-bearing years are the fastest growing segment of the labour force in many countries. In recent years, attention has also focused on the economic costs of importing infant milk substitutes. National lactation policies have been introduced in a number of countries both to reap the health benefits of breast-feeding and to reduce the current expenditure of foreign exchange on imported breastmilk substitutes.
In enterprises which have instituted mother-friendly policies and practices, the economic benefits are perhaps first measured in terms of reduced health insurance costs. The results of internal research carried out by Kaiser Permanente, a major health maintenance organization in the United States, anticipated that policies to support breast-feeding in the workplace would not only optimize the long-term health of the infants and mothers concerned, but would significantly reduce health costs by reducing the need for medical consultation, prescription drugs and hospitalization of infants in the first year of life.12
Lower absenteeism, increased employee loyalty and a higher rate of return to work after childbirth were among the additional benefits achieved by the Los Angeles Department of Power and Water, a utilities company with some 11,000 employees. Until their breast-feeding support policy had been introduced, the Department had been losing an estimated US$1 million annually due to non-return to work after maternity leave, and annual health care costs were approximately US$70 million. Once the support programme was in place, the Department saw absenteeism decline by 20 per cent and health care claims drop by 35 per cent. Active support for breast-feeding employees resulted in a US$7 reduction in expenditure for each dollar invested.13
Many mothers choose to wean their infants before they return to full-time work. For others, however, breast-feeding continues for several months after their return from leave. These employees may require special consideration from their employers with regard to the adaptation of working time and the provision of nursing facilities, which go beyond the minimum requirements of the law. Corporate lactation programmes, which provide prenatal counselling and workplace support for breast-feeding, are increasingly seen as a cost-effective investment to increase employee morale, minimize absenteeism and reduce turnover. In addition, such programmes are seen by many employees as supportive of their efforts to balance professional and family responsibilities.
Nursing breaks in the workplace
The Maternity Protection Convention, 1919 (No. 3), states in Article 3 (d) that a woman shall if she is nursing her child, be allowed half an hour twice a day during her working hours for this purpose.
The Maternity Protection Convention (Revised), 1952 (No. 103), extends this protection by stating in Article 5 (2) that interruptions of work for the purpose of nursing are to be counted as working hours and remunerated accordingly in cases in which the matter is governed by or in accordance with laws and regulations; in cases in which the matter is governed by collective agreement, the position shall be as determined by the relevant agreement. Article 5 (1) states that the time or times allowed for nursing breaks are to be prescribed by national laws or regulations.
Special breaks for nursing mothers are well-established in legislation worldwide, with more than 80 countries making explicit provisions. In about half the countries providing nursing breaks, specific mention is made of the fact that such breaks are in addition to normal rest periods. The law usually states that nursing breaks are to be considered as working time and remunerated accordingly, although in a number of countries this is not specified. In Japan, for example, the law calls for remuneration to be handled through collective bargaining.
The vast majority of countries granting nursing breaks provide for one hour of nursing time per day, often divided into two 30-minute periods. In other countries, workers may choose to have more frequent, but shorter, breaks. In Haiti, for example, women can choose between two 30-minute breaks or a break of 15 minutes every three hours. In a few countries, no guidance is given as to the duration of the breaks, while in others, such as Indonesia and Switzerland, the law merely calls for the provision of the necessary time off. In Colombia, the employer is required to grant more than the statutory two 30-minute paid breaks per day if the worker provides a medical certificate explaining the reasons why more breaks are needed. In China, a nursing mother may have an additional 30 minutes per day per child in the event of multiple births.
The duration of nursing breaks may be extended if no nursery facilities are provided by the employer at the workplace. In the Netherlands, for example, two 45-minute breaks are granted if a special nursing room is provided on site, whereas if the mother returns home to nurse, her entitlement is up to one-quarter of her total normal working time. In Italy and Venezuela, the statutory provision of two 30-minute breaks is extended to two one-hour breaks, in the event that there is no on-site nursery available. In some countries, nursing breaks may be converted into a reduction in working time to allow for late arrival or early departure from the workplace. In practice, employers often agree that the time available for nursing breaks may be used to enable mothers to come in early or leave late, an arrangement which has a statutory basis in Estonia, Norway and Romania.
The term nursing breaks suggests that time off is provided to women who breast-feed, although in some countries mothers who bottle-feed would also appear to be eligible. For example, in the Lao Peoples Democratic Republic, nursing breaks are available to women to nurse or take care of their child. Nursing breaks are available to the father under certain conditions, for example in Italy, where they may take nursing breaks if the mother dies or is unable to attend to the child because of a serious illness. In Spain, mothers and fathers have the same right to take nursing breaks.
The period during which nursing breaks are granted is often set at six months, as in Honduras; one year, as in Dominican Republic, France, Guinea-Bissau, Republic of Korea and Mozambique; 15 months, as in Chad, Madagascar and Mali; or even more. The Islamic Republic of Iran, for example, grants nursing breaks for up to two years. In some countries, the period for nursing is limited by such expressions as for the period of lactation, until the child is weaned or as necessary; in others, no period is set at all. Argentina, Brazil and Guatemala are among those countries which allow the nursing period to be extended upon the recommendation of a medical practitioner.
The Maternity Protection Recommendation, 1952 (No. 95), urges that provision be made for the establishment of facilities for nursing or day care. Regulations on the provision of a special nursing room have been identified in more than 20 countries, mainly in Africa, Asia and Latin America. Such regulations usually apply to all sectors of activity, but only to those enterprises employing a minimum number of women. The minimum may be as high as 100 as in Egypt, but is generally set at 25, as in CdIvoire and Madagascar; at 30, as in Costa Rica and Nicaragua; or at 50, as in the Central African Republic, Chad, Ecuador, Morocco, Nepal and Tunisia. China provides that an enterprise with five nursing mothers shall take steps to set up a nursing room. As noted earlier, a number of countries adapt the length of time allowed for nursing breaks to the presence or absence of nursing facilities on-site.
In a limited number of countries, a special rest room is to be provided only for pregnant women or nursing mothers, as in China. Cameroon specifies that the separate nursing room must be provided with seats, drinking water and facilities for heating bottles and food. Even where legislation does not require employers to provide nursing facilities, many enterprises choose to maintain an on-site nursery or a quiet room, where nursing mothers may express their milk during the workday for later use at home. Typically, a firm would set aside a room where employees can express their milk and store it in a refrigerator. It might also provide a manual breastpump and insulated boxes to carry the breastmilk home. Such facilities are much appreciated by working mothers who choose not to transport their babies to the workplace, but are unable to return home during their nursing breaks.
Unfortunately, many worksites still lack clean, secure and well-maintained facilities for breast-feeding or milk expression. As a result, nursing mothers may be forced to choose between weaning their infants earlier than recommended or using the unsanitary conditions which prevail in workplaces, toilet areas or locker rooms. Both options raise legitimate health concerns. Furthermore, unless nursing facilities are clearly designated and appropriately situated, nursing mothers may suffer a lack of privacy and security from unwarranted intrusion. The physical equipment needed for a nursing room is minimal. It includes tables, chairs, clean running water, electricity and, ideally, a refrigerator for the storage of expressed milk. Nonetheless, many workplaces still fail to provide such facilities.