The protection of the health and safety of a working mother is governed by Legislative Decree n. 81/2008 (Consolidated Act on Safety at Work) and by Legislative Decree n. 151/2001, (Consolidated Text of legislative provisions on the protection and support of maternity and paternity).
The employer is entrusted with the task of evaluating all the risks concerning pregnancy and breastfeeding, taking into account both the health of the woman and that of the child, and providing for the subsequent prevention and protection measures, including any changes in working hours and conditions and the transfer to a non-risk job (articles 11 and 12 of Legislative Decree no. 151/01).
Art. 11 of the aforementioned decree prescribes that the employer, in conjunction with the risk assessment carried out per the articles. 17 and 28 Legislative Decree Lgs. 81/08, evaluate in advance the risks to the health and safety of pregnant, postpartum, and nursing workers, in particular, the risks of exposure to physical, chemical, or biological agents, as well as the processes or working conditions set out in Annex C of the same decree, identifying the prevention and protection measures to be adopted.
This prior assessment allows the employer to inform workers, even before a pregnancy occurs, of the risks existing in the company, of the prevention and protection measures that he believes he should adopt in this case, and, therefore, of the importance of employees informing him promptly of their status, so that specific risks can be immediately evaluated and the subsequent protection measures are taken.
The starting point is the definition of a working mother linked to the process of informing her state to the employer: as to say that, in the absence of this element (which constitutes in all intents and purposes a burden placed on the worker and in some cases a real obligation, albeit without a sanction), protection legislation is not necessarily applicable. (However, unable to deploy its full potential).
Information provided to the employer of your state must take place through the presentation, by the worker, of the medical certificate of pregnancy and the subsequent birth care certificate (arts. 14:15 of Presidential Decree n. 1026/1976). Any delays do not result in the loss of rights deriving from the physical protection regulations, which, however, become operational only after the presentation of these documents. Moreover, protection also applies to female workers who have received children through adoption or foster care.
Based on the above, the employer, when informed that a worker is pregnant, in addition to carrying out the general risk assessment, must evaluate the specific risks to which she is exposed and work to ensure that no harm may affect her health or that of the child. The nature and duration of the exposure must also be determined. At the end of the evaluation, the employer is obliged to inform the working mothers and the RLS, in accordance with art. 36 of the T.U. Safety, based on the results of the evaluation and the subsequent protection and prevention measures taken. The measures taken must avoid exposing female workers to risk, through a temporary change in working conditions or hours.
Among the risk factors for pregnant, postpartum, or nursing workers, to which the employer must pay particular attention in the preliminary risk assessment activity, should be noted:
Art. 53 of Legislative Decree n. 151/2001, provides in particular for an absolute prohibition of assigning women to work, from 24:00 to 06:00, “from the verification of the state of pregnancy until the child is one year old”.
It is also provided that such an hourly arrangement is not mandatory for workers with children under the age of 3 (or alternatively for the cohabiting working father) or with children under 12 years of age if the sole custodial parent. This requirement is particularly important with a view to preventing work-related stress resulting from the difficulty of reconciling family commitments with work commitments.
Extended working hours and shift work represent conditions that, by inducing mental or physical fatigue, aggravate the worker’s fatigue, fatigue related to pregnancy and the postnatal period. Prevention measures, in this sense, consist in modifying the organization of work aimed at regulating the frequency of breaks, and the type and duration of working shifts. In addition, if working conditions are too physically or mentally time-consuming, the employer must ensure that pregnant women or nursing mothers have the opportunity to rest in a lying position and under appropriate conditions.
Another important requirement to protect maternity (art. 56 Legislative Decree 151/01) concerns the right of return of the working mother at the end of the periods of prohibition of work mentioned above. There is a risk that the compulsory absence will affect the mother's working conditions, where she will not be relocated to the same operating unit or another one at least located in the same municipality, with the right to remain there until the child's first year of life or is not assigned to the duties most recently performed or equivalent tasks. Furthermore, any demotion may result in, in addition to the damage to professionalism, also biological damage which, if duly certified, is liable to compensation paid by the employer. This aspect must also be taken into account to avoid the onset of damage to the psycho-physical health of working mothers resulting from organizational dysfunctions.
The working mother must also be informed about the possibility of extending the period of maternity leave by bringing it forward or postponing it: three months from the expected date of delivery in the case of heavy or harmful work (art. 17 paragraph 1 of Legislative Decree no. 151/01), from the beginning of pregnancy to mandatory abstention not only in the case of pregnancy complications or pre-existing forms of illness that may be aggravated by pregnancy, but also where working or environmental conditions are considered harmful to the health of women and children, and when the worker cannot be assigned to other tasks. It will be necessary to inform the worker of the procedures to be adopted if the problems are of a health or environmental nature, of the requests to be submitted to the labour inspection service, and of the time required for the relevant authorizations. Since the medical and environmental assessment is not immediate, but requires time that however short, entails a period of working time of potential risk (authorization measures must be issued within a maximum of 7 days), it is advisable to prepare the appropriate organizational initiatives and inform the employee.
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