DRAFT MATERNITY PROTECTION

 

Related International Labor Standards (attach ILO Conventions and Recommendations).

 

Maternity protection is a fundamental human right and an indispensable element of comprehensive work–family policies.

Maternity protection for women workers has been a core concern of the ILO since its foundation in 1919, when the governments, employers and trade unions of member States adopted the first Convention on maternity protection No. 3, which was followed by the adoption of other two Maternity Protection Conventions: No. 103 in 1952 and No. 183 in 2000.

 

 

The most recent international labour standards on maternity protection are Convention No. 183 and Recommendation No. 191 (2000) which comprise five core elements of maternity protection at work:

• maternity leave;
• cash and medical benefits;
• health protection at the workplace;
• employment protection and non-discrimination;
• breastfeeding arrangements at work;

 

And it also contemplates beyond maternity and back to work.

 

 

The goal of maternity protection legislation is to enable women to combine their reproductive and productive roles successfully and to promote equal opportunities and treatment in employment and occupation, without prejudice to health or economic security.

Maternity protection is important because it protects the health and safety of the mother and the child, it protects against economic vulnerability due to pregnancy and maternity, and it is central to gender equality in employment.

These Conventions, together with their corresponding Recommendations (No. 95, 1952; No. 191, 2000) have over time expanded the scope and entitlements related to maternity protection at work in line with the evolving status and recognition of women’s rights in the world of work.

International labour standards on maternity protection, in line with the Equal Remuneration Convention No. 100, 1951 and the Discrimination (Employment and Occupation) Convention No. 111, 1958, have indeed reaffirmed the principle of equality of opportunity and treatment for men and women, which is at the heart of social justice, the constitutional mandate of the ILO.

In addition, the adoption of the ILO Workers with Family Responsibilities Convention No. 156, 1981 marked the recognition that “a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women”, as stated in the United Nations Convention on the Elimination of All Forms of Discrimination against Women, 1979.

Virtually every country around the world provides some type of maternity protection legislation and many others also adopted measures to support workers with family responsibilities: a total of 66 countries ratified at least one of the three maternity protection Conventions adopted by ILO member States since 1919.

Recent ILO data on 185 countries and territories show that 34 per cent fully meet the requirements of ILO Maternity Protection Convention, 2000 (No. 183), and Recommendation, 2000 (No. 191) on three key aspects: they provide for at least 14 weeks of leave at a rate of at least two-thirds of previous earnings, paid by social insurance or public funds.

Also fathers undertaking a more active role in caregiving is likely to be one of the most significant social developments of the twenty-first century.

 

1. Maternity leave

 

Maternity leave is a period of leave from paid work that women workers are entitled to during pregnancy, childbirth and the postnatal period. It provides a period of rest from the physiological demands of pregnancy, childbirth and breastfeeding, which only women bear. Thus, it contributes to promoting maternal and newborn health according to MDGs 4 and 5.

The most recent ILO standard on duration of maternity leave mandates a minimum leave period of 14 weeks (Convention No. 183), up from 12 weeks in the previous Conventions.

Recommendation No. 191 encourages ILO member States to increase the period of maternity leave “to at least 18 weeks”.

Maternity leave is one of the fundamental entitlements of maternity protection and it has been almost universally adopted in national legislation. There has been a gradual global shift towards maternity leave periods that meet or exceed the ILO standard of 14 weeks. Between 1994 and 2013, 35 on the subset of 139 countries studied by ILO increased the duration of maternity leave and more than half now provide at least 14 weeks.

During that period, the proportion of countries providing less than 12 weeks of leave has decreased from 19 to 12 per cent. Indeed, more countries are now providing longer leave periods, as the percentage of countries providing between 14 and 17 weeks of leave has increased from 29 to 37 per cent, and the proportion providing at least 18 weeks of leave has increased from 9 to 14 per cent.

While maternity leave is designed to protect working women during their pregnancy and recovery from childbirth, related types of leave also exist. Paternity, parental and adoption leave assist parents in adapting to the arrival of a child and allow a better balance between work and family responsibilities.

Recently, there has been also a move towards encouraging fathers to take up care-related leave by introducing paternity leave (shorter leave immediately after childbirth) which recognizes that men also have family responsibilities, and by extending parental leave to both parents to decide how to share it.

 

Source of funding of maternity leave cash benefits, 1994 and 2013 (144 countries) (%)

 

 

 

Source: Conditions of work digest: Maternity and work (Geneva, ILO, 1994); ILO Working Conditions Laws Database – Maternity Protection. Available at: http://www.ilo.org/travdatabase [25 Mar. 2014].

 

 

Maternity leave / Regions

 

• Africa

In most African countries the duration of maternity leave in 2013 was the same as in 1994.

However, seven countries have increased the duration of maternity leave:

• Egypt increased leave from 50 to 90 days
• Kenya increased leave from two to three months
• Libya increased leave from seven to 14 weeks in 2010
• Morocco increased leave from 12 to 14 weeks
• South Africa from 12 weeks to four months
• Uganda increased leave from eight weeks to 60 working days (ten weeks) and
• Zimbabwe from 90 to 98 days.

The percentage of countries in this region providing 14 to 17 weeks of leave has increased from 43 to 51 per cent.

• Americas

Among 32 Latin American and Caribbean countries, four countries provide 14 weeks of leave while another three provide 18 weeks of leave. Three-fourths of countries in this region (72 per cent) provide 12–13 weeks of maternity leave, and an additional six per cent provide less than 12 weeks.

In most of the Latin American and Caribbean countries analyzed by ILO, the length of leave remained constant between 1994 and 2013. However, some countries have increased the duration of maternity leave:

• Bahamas increased the length of leave from 8 to 12 weeks
• Chile increased “postnatal parental leave” from 18 to 30 weeks in 2011
• The Bolivarian Republic of Venezuela increased leave entitlement from 18 to 26 weeks in 2013
• Belize and Colombia increased leave entitlements from 12 to 14 weeks in 2011

 

So, the number of countries providing at least 14 weeks of leave increased from six to eight between 1994 and 2013.

In Peru, the system is flexible regarding when the non-compulsory part of the leave can be taken. The normal duration of leave is 90 days, with a compulsory period of 45 days after confinement. The remaining 45 days can be taken before birth or they can be totally or partially deferred and added to postnatal leave if the woman desires and if it does not affect the mother and child negatively.

United States provide statutory maternity leave, but have no general legal provision of maternity leave cash benefits.

• Arab States Asia and Pacific

In Asia, the period of leave increased in six countries out of the 19 where information was available in both reference years (1994 and 2013). The percentage of countries providing less than 12 weeks’ leave decreased from 26 to 11 per cent, while the percentage of countries providing at least 14 to 17 weeks increased from 11 to 26 per cent.

• Bangladesh increased leave from 12 weeks to 16 weeks
• Mongolia increased leave from 101 days to 120.
• China increased leave from from 13 to 14 weeks in 2012
• Republic of Korea increased leave from 60 to 90 days
• Singapore increased leave from eight to 16 weeks
• Viet Nam, where a new law took effect in early 2013 extending leave from 17 to 26 weeks

 

Papua New Guinea provide statutory maternity leave, but have no general legal provision of maternity leave cash benefits.

• Europe and Central Asia

Among the Eastern European and Central Asian countries, only Turkey increased the length of maternity leave (from 12 to 16 weeks) in 2003.

On the other hand, the countries in this region have long provided maternity leaves that significantly exceed international standards, with an average duration of almost 27 weeks.

• In France, women are entitled to 16 weeks of leave, to be divided into six weeks before and ten weeks after the expected birth. If a woman desires, and if a medical practitioner approves, she may reduce the prenatal leave by up to three weeks and transfer those weeks to the postnatal period.
• In Singapore women are entitled to 16 weeks of leave, four of which are compulsory postnatal leave. If a woman prefers, rather than having a continuous leave of 16 weeks, and if her employer agrees, she may take the last seven weeks at any point during the year that follows the birth of her child.

 

2. Cash and medical benefits

Pregnancy, childbirth and the postnatal period come with a series of health risks, and can lead to maternal and newborn mortality and morbidity.

Cash and medical benefits mitigate the economic and health risks of maternity. Medical benefits provide access to health services and as childbirth requires time off from work, and most women cannot afford to forfeit their income during maternity leave, cash benefits replace lost income.

To be in conformity with Convention No. 183, the cash benefit paid during maternity leave should be at least two-thirds of a woman’s previous earnings – or a comparable amount if other methods are used to determine cash benefits – for a minimum of 14 weeks. The overall guiding principle is that the level of benefits should ensure “that the woman can maintain herself and her child in proper conditions of health and with a suitable standard of living”.

Regarding medical benefits ILO Conventions call for a maternity package to include prenatal, delivery and postnatal care, and hospitalization where necessary. In fact, Convention No. 102 prohibits the charging of co-payments for these services. ILO Conventions call for medical benefits to be provided through insurance or the general health services, depending on the health system in the country.

Extending maternity cash and medical benefits to vulnerable and unprotected women remains challenging, especially in low-income countries. However, cash transfer schemes, community-based health insurance and basic health benefits packages represent promising approaches when integrated as part of the broader national social protection system. 

Globally, 45 per cent (74 countries) of the 167 studied provide cash benefits of at least two-thirds of earnings for at least 14 weeks. In fact, 37 per cent (61countries) go beyond this standard by providing 100 per cent of previous earnings for at least 14 weeks. In over half (93 countries), however, maternity leave is unpaid, paid at less than two-thirds of previous earnings or paid for a period of less than 14 weeks.

 

Source of funding of maternity leave cash benefits, 2013 (185 countries and territories)

 

Source: ILO Working Conditions Laws Database – Maternity Protection. Available at: http://www.ilo.org/travdatabase [26 Mar. 2014].

 

Cash and medical benefits / Regions

 

• Africa

 

Nearly all African countries calculate maternity benefits as a percentage of prior earnings. The exceptions are Seychelles, which pays women a flat rate benefit.

Of 50 African countries studied, 39 per cent provided at least two-thirds of earnings for 14 weeks.

•   Of these the Democratic Republic of the Congo pays two-thirds of prior earnings for 14 weeks.
•   And Algeria, Benin, Burkina Faso, Cameroon, Chad, Comoros, Congo (15 weeks), Côte d’Ivoire, Gabon, Guinea, Madagascar, Mali, Mauritania, Morocco, Senegal, Togo and Zimbabwe all pay 100 per cent of earnings for 14 weeks.

Among the remaining countries that did not provide at least two-thirds of earnings for 14 weeks, some paid 100 per cent of prior earnings but for a period of less than 14 weeks.

•   Guinea-Bissau, Sierra Leone and Sudan, (60 days, 12 weeks and eight weeks, respectively).

Others provide at least 14 weeks of maternity leave, but with lower levels of compensation.

•    The Central African Republic provides 14 weeks of leave paid at 50 per cent of earnings.

 

• Americas

 

Thirty-one out of 32 Latin American and Caribbean countries calculated benefits as a percentage of earnings. One country used a flat rate plus a percentage of prior earnings.

Among the Latin American countries, 22 per cent met or exceeded the standards on duration and level of pay. Many of the remaining countries provided at least two-thirds of earnings but for less than 14 weeks.

•   Argentina, El Salvador, Mexico and Uruguay provide 100 per cent of prior earnings, but fall short of the 14-week standard in Convention No. 183.
•   Dominica, Saint Lucia and Paraguay provide less than 14 weeks of leave and either pay less than two-thirds of prior earnings
•   Dominican Republic, Ecuador, Guatemala, Honduras and Nicaragua rely excessively on employers for payment
•   Haiti and Jamaica fall short on all three provisions.

Financing maternity benefits through social security systems is fairly widespread among the Latin American countries.

•   In Argentina, Decreto Nº 406/2011 set up a new social protection programme, the Pregnancy Universal Allowance for Social Protection (Asignación Universal por Embarazo para Protección Social), which provides that pregnant women from the 12th week of pregnancy until delivery or miscarriage have access to cash benefits.

The conditions to receive the benefit are: being unemployed, having contributed to social security and not receiving any other benefits, or working in the informal sector with a salary below the minimum wage.

The beneficiary must be a legal citizen of Argentina or a legal resident. The benefit consists of a monthly cash benefit of 837 (December, 2015) Argentine Pesos (approximately US$60). The programme plans to cover about 180,000 women per year.

•   In El Salvador, the Alliance for the Family programme is an interesting example of the role which the improvement of maternity leave benefits played as a countercyclical measure to simultaneously prevent the deterioration of living conditions of women and their families and support unpaid care work.

In addition to rebates on schooling costs, expanded health coverage and an increase in pensions, the programme provided a 100 per cent wage replacement rate (instead of the statutory 75 per cent) during the 12 weeks’ maternity leave to working mothers registered with the Salvadorian Social Security Institute (Espino, 2013).

 

• Arab States Asia and Pacific

 

All but two of 23 studied countries in Asia and the Pacific provided benefits as a percentage of prior earnings; only two provided at least two-thirds of earnings for 14 weeks.

Among the remaining countries, a large number provided full earnings during maternity leave, but for less than 14 weeks.

• Indonesia, the Republic of Korea and Pakistan, specify short periods of leave while also relying on employers to pay benefits.
• Cambodia, Kiribati, Papua New Guinea, Solomon Islands and Thailan, five of the 26 Asian countries analysed fall below all three standards.
• Only China, Mongolia and Viet Nam met the standards. For example, in 2011, China extended maternity leave from 90 to 98 days.
• Iraq, Lebanon and the United Arab Emirates, fall short on length and rely on employer liability systems.
• Saudi Arabia requires progress on all three aspects.

 

• Europe and Central Asia

 

Regarding cash benefits, among the 16 Eastern European and Central Asian countries analysed, all meet the standards established by Convention No. 183, while 14 countries exceed the duration and payment standards in this Convention.

• Slovakia increased the duration of maternity leave from 28 to 34 weeks, and the wage replacement rate from 55 to 65 per cent of reference earnings in 2011.
• Poland increased maternity leave from 20 to 26 weeks at 100 per cent of previous earnings and introduced a new option allowing 52 weeks of leave at 80 per cent in 2012,
• Norway increased paid parental leave to 49/59 weeks at 100/80 per cent of earnings, with an extension of the mother’ s and father’ s quotas to 14 weeks, in order to achieve greater gender equality between women and men in  2013 (Brandth and Kvande, 2013).

 

 

 

 

3. Health protection

Some features of work and workplaces can pose particular risks to safety and health during pregnancy and breastfeeding. Hazards to reproductive health can be biological, chemical, physical or can be due to stress, poor hygiene and poor working conditions. 

Workplace health protection is essential because women may be more susceptible to some workplace hazards at these periods of their reproductive cycle, and may be harmed in different ways.

Upon notification that a worker is pregnant, a risk assessment should be conducted and appropriate follow-up measures should be taken.

Health needs of expectant and breastfeeding mothers change as the pregnancy progresses; immediately before and after delivery; and when breastfeeding.

Maternity Protection Convention, 2000 (No. 183) states that pregnant or breastfeeding women:

 

• Should not be obliged to carry out work that is prejudicial to or has a significant risk to her health and safety or that of the child (Article 3)
• Shall be provided with additional leave for pregnancy-related illness or complications of pregnancy (Article 5)
• Shall be provided with paid breaks or reductions in working time to breastfeed her child (Article 10)

 

The adoption of Recommendation No. 191 of 2000 reflects the change in policy in terms of the protection of pregnant or nursing women with regard to night work. In fact, contrary to its predecessors, the more recent Convention respecting night work (No. 171 of 1990) no longer bans night work for women, but provides “measures of protection for all night workers including many of those aspects of special concern for women”, such as “special measures of maternity protection and safety” (ILO, 2001).

Protective measures should be strictly restricted to maternity and not based on stereotypes of women’s professional abilities and roles in society. Arrangement of working time as a means of health protection for pregnant or nursing workers is important.

Several ILO member States have provisions covering night work and overtime. More than two-thirds of countries (111) have statutory measures on dangerous or unhealthy work which can affect pregnant or nursing women. Of 160 countries for which information was available, 78 (49 per cent) set out explicit prohibitions against such work.

 

Statutory provisions on dangerous or unhealthy work, 2013 (160 countries) %

Source: ILO Working Conditions Laws Database – Maternity Protection. Available at: http://www.ilo.org/travdatabase [31 Mar. 2014].

 

Health protection / Regions

 

• Africa

In South Africa, there is a legal requirement for employers to conduct risk assessments in relation to the work of pregnant and nursing employees; the employer must undertake this evaluation upon notification by the employee that she is pregnant, and the assessment must be kept under regular review. Ergonomic hazards like heavy physical work, static work posture, frequent bending and twisting, lifting heavy objects, repetitive work, and awkward postures, standing for long periods and sitting for long periods must be assessed. Furthermore, physical hazards must be assessed like noise, vibration, radiation, electric and electromagnetic fields.

In Algeria, according to legislative protection, pregnant workers who occupy a post involving exposure to ionizing radiations will be transferred to a different job. Breastfeeding mothers shall not work in a post where a risk of contamination may exist.

In Burkina Faso, all women (but not men) are prohibited from work that is likely to affect reproductive functions as determined by law in line with the views of the advisory Work Commission.

Examples of blanket provisions prohibiting women’s employment exist in Guinea (where women may not work in underground mines) and Tajikistan (where all women are prohibited from undertaking underground work, heavy work and work in harmful conditions).

 

• Americas

According to legislative protection from work that is dangerous to or unhealthy for reproduction:

•   In Chile, pregnant workers cannot be obliged to perform any dangerous work and must be transferred to work of another type. Work considered prejudicial to health includes any work that obliges the worker to lift, drag or push heavy weights, make physical effort, including standing for long periods of time, and work that the competent authority states as incompatible with pregnancy.
•   In Mexico, pregnant women shall not perform work involving abnormal atmospheric pressure or conditions in which environmental temperature is altered; work producing vibration; or work involving standing for long periods of time.
•   In Paraguay, if there is a risk to the health of the woman or unborn child, either during pregnancy or breastfeeding, the woman shall not undertake dangerous or unhealthy work. Dangerous or unhealthy work is that which, by the nature of the physical, chemical or biological conditions under which it is carried out or by the composition of the raw materials involved, could affect the life or mental or physical health of the woman or her baby.
•   In the Plurinational State of Bolivia and Brazil, a pregnant worker whose employment requires her to carry out work that may affect her health, is entitled to special treatment that will allow her to carry out her activities in appropriate conditions, without her wage level or her position being affected.

In Cuba, for example, during her pregnancy and for up to 34 weeks before childbirth, a woman worker is entitled to six days or 12 half days of paid leave to receive medical and dental treatment. During the child’s first year, a woman worker is entitled to one day of paid leave every month to attend a paediatric clinic.

In Brazil, pregnant women can take time off for six medical consultations.

In Costa Rica, examples of blanket prohibitions can be found, for example, where, while women are not permitted to carry out work that is unhealthy, heavy or dangerous, no risk assessments are called for.

In Colombia, blanket provisions prohibiting women’s employment exist where women may not work in mines, undertake dangerous or unhealthy work or take jobs with exposure to certain chemical radioactive or ionizing substances. And pregnant women may not do any work that requires a marked ability to maintain equilibrium, such as working up ladders or handling heavy machinery, or work that involves dangerous procedures.

 

• Arab States Asia and Pacific

In the Islamic Republic of Iran, a pregnant woman shall be transferred to another place of work if her job is dangerous to her health or pregnancy.

The labour code of the Islamic Republic of Iran explicitly outlines the measures to be taken, stating that if the physician of the Social Security Organization considers the work of a pregnant woman to be dangerous or arduous, she must be provided with a more suitable and easier job until childbirth, without loss of income.

According to legislative protection from work that is dangerous to or unhealthy for reproduction:

•   In Japan, pregnant women or women within one year after confinement may not be engaged in underground work or in work which may be harmful to pregnancy, childbirth or nursing, such as jobs involving the handling of heavy weights or where harmful gases are emitted. The scope of such work shall be specified by the government.
•   In Lao People’s Democratic Republic, an employer shall not require a woman during her pregnancy or during the six months following her confinement, to perform any work which entails standing continuously for long periods. In such circumstances the employer shall assign women to other temporary duties. While performing these temporary duties, the workers concerned will continue to receive their normal salary or wage for a maximum period of three months, after which they will be paid the salary or wage corresponding to their new assignment.

 

• Europe and Central Asia

In the European Union, the protection from dangerous and unhealthy work for pregnant and breastfeeding workers provided by the Directive on pregnant workers is very detailed. In most respects, it requires the same protective procedures as the ILO’s current standards on maternity protection.

In Austria, Belgium, Bulgaria, Finland, Norway, Slovakia and Spain, time off is only granted if the prenatal examinations cannot take place outside working hours.

This provision is stipulated in the EU Directive on pregnant workers. According to the Directive (Article 9), EU Member States must take the necessary steps to ensure that pregnant workers are entitled to time off, without loss of pay, in order to attend ante-natal examinations, if such examinations have to take place during working hours (EEC, 1992).

In Bulgaria for example, the employer, jointly with the health authorities, will annually designate positions and jobs suitable for pregnant women and nursing mothers. Risk assessment shall provide a cover all aspects of the work so as to establish all possible hazards and risks. When identifying the risks to which the workers and employees are exposed, the workers and employees who need special protection, including pregnant and breastfeeding workers and employees, shall be considered.

 

4. Employment protection and non-discrimination

Employment protection provides protection against termination of the employment of a woman on maternity leave and ensures that she can return to work at the end of her leave to the same position or to one that is equivalent to the position she held prior to leave.

Protection against discrimination based on maternity is defined as the right of all women not to be treated less favourably in a work situation – including access to employment – on the basis of maternity.

Employment protection has been a fundamental element of maternity protection since the very first ILO Convention on the issue in 1919 and remains a key provision of the most recent ILO Convention on Maternity Protection, No. 183, 2000, which:

 

•   provides protection against dismissal during pregnancy and prohibits dismissal on grounds related to pregnancy, birth of a child and its consequences, or nursing. It also sets out that the burden of proving that reasons for dismissal are unrelated to pregnancy, childbirth or nursing shall rest on the employer
•   recognizes the fact that, while discrimination might be suffered in the workplace, it can also occur during recruitment and hiring, prejudicing women’s chances of finding employment. Therefore, measures are required to prevent maternity from constituting a source of discrimination.
•   prohibited requiring a pregnancy test at the time a woman applies for a job, except under certain circumstances (this provision is beginning to appear in national legislation around the world). 

Virtually all countries have adopted important legislative provisions concerning maternity protection at work. Over 80 per cent of countries set out explicit prohibitions against discrimination during pregnancy, leave, and/or an additional prescribed period.

Information on how much maternity-related discrimination happens is not widely available, but reports from complaints bodies, trade unions, surveys, and legal centres indicate that such discrimination continues and in some places may be increasing.

Right to return to work, 2013 (146 countries) (%)

Source: ILO Working Conditions Laws Database – Maternity Protection. Available at  http://www.ilo.org/travdatabase [30 Mar. 2014].
Employment protection/ Regions

• Africa

 

•   In Cambodia, in a survey of workers in the garment industry, “pregnancy” was cited as a source of discrimination in recruitment at factories by 68 per cent of the women interviewed (ILO, 2012a).
•   In Cameroon, the General Union of Workers of Cameroon (UGTC) reported that some enterprises are dismissing women on the grounds of pregnancy (CEACR, Direct Request, Cameroon, C3, 2013).
•   In Mozambique, maternity- related discrimination, among other labour law breaches, has been related to a sharpening of labour relations resulting from increased national and foreign investment linked to natural resources discoveries.

In 2013, 13,850 violations of Mozambican labour legislation were registered by the General Inspectorate of Labour, which reported that pregnant women were particularly likely to lose their jobs, with their employment terminated by employers who were unwilling to pay for maternity leave.

 

• Americas

 

A study on wage and non-wage costs of hiring men and women in Argentina, Brazil, Chile, Mexico and Uruguay found that the monetary costs assumed by employers hiring women are very low: less than two per cent of gross monthly wages, ranging from a low of 0.2 per cent in Mexico to 12.8 per cent in Chile. In terms of maternity costs, the study revealed a low incidence of pregnancy per year and therefore a low total number of maternity leaves and associated benefits.

Moreover, because these countries have established public funds, social security systems or welfare contributions paid by the workers, employers do not directly bear the costs of the wages of women on maternity leave and their health care before and during delivery. The study concluded that the perception of women as more costly than men to employ is not accurate.

However:

•   In the Dominican Republic, the Government received 128 maternity-related employment discrimination complaints in 2009, up from 91 in 2005.
•   In Costa Rica, the labour inspectorate received 635 complaints in 2009, up from 230 in 2008 (ILO, 2012b, Module 9).
•   In the United States, pregnancy discrimination claims grew faster (at 31 per cent) than all job bias claims between 2005 and 2010 (ILO, 2012b, Module 9).

Since 2001, US courts have paid out US$ 150 million in damages in pregnancy discrimination cases. It is not clear whether these increases in complaints reflect rising discrimination (particularly in the context of the economic crisis), or increasing awareness among workers of their maternity rights, but they do reflect the persistence of job dismissal and employment discrimination on the basis of maternity.

 

• Arab States Asia and Pacific

 

•   In China, a study by the All China Women’s Federation showed that 21 per cent of rural women who migrated to urban areas were fired after becoming pregnant or having a child (ILO, 2012).

Specifically in Hong Kong, China, statistics produced by the Equal Opportunities Commission of Hong Kong indicate that gender discrimination is a pervasive problem in Hong Kong, comprising 46 per cent of all employment-related complaints investigated in 2008-2009 (428 out of 931). Of these, more than half (i.e. 233 cases or 54 per cent) were pregnancy-related.

•   In the Republic of Korea, a poll by the job portal Incruit revealed that one-third of pregnant female workers decided not to take maternity leave for fear of discrimination, and 7 per cent were told to resign after claiming maternity benefits (ILO, 2012).
•   In Singapore, 119 maternity-related complaints were filed with the Ministry of Manpower in the first nine months of 2009, the highest total since records started being reported in 2004 and double the 2007 monthly rate.

 

• Europe and Central Asia

 

The European Union country review demonstrates a considerable level of maternity-based discrimination across EU Member States regarding recruitment, dismissals, pressure to resign, harassment and other practices that run counter to the principles of employment protection and non-discrimination (Masselot et al.,2012).  

•   In Spain, “mobbing” practices are reportedly widespread, with pregnant women reporting having experienced harassment at work during pregnancy and dismissal or pressure to depart (see Masselot et al., 2012).
•   In Croatia, Greece, Italy and Portugal, there are reports of widespread use of “blank resignations” – undated resignation letters that workers are forced to sign upon hiring, which are used to dismiss them if they become pregnant or are faced with a long-term illness or family responsibilities.
•   In Greece, discrimination related to pregnancy and childcare leave was recorded in 2011 as the most prevalent form of discrimination (making up 42.46 per cent and 21.79 per cent, respectively, of total complaints concerning discrimination) (CEACR, ibid.).
•   In Italy, a 2006 study of discrimination complaints cases reviewed by the Office of the National Council of Equality, attached to the Ministry of Labour, showed that among the various types of discrimination, a substantial proportion (34 per cent) of reported cases (212) covered by the regional and district boards were related to working conditions, and more than half of these (i.e. 110 cases or 17.7 per cent of the total) concerned maternity.
•   In the United Kingdom, a study by the Equality and Human Rights Commission (EHRC) reported that around 7 per cent of pregnant women (approximately 30,000 per year) lose their jobs due to pregnancy. Many more (approximately 45 per cent) suffer some sort of financial loss or are pressured into quitting their jobs (EHRC, 2005).
•   In France, a national research project mandated by the French Government in 1998 concluded that every year four per cent of pregnant women in France (i.e. 29,500) lose their jobs due to their pregnancy. While only 126 cases of pregnancy-based discrimination were reported to the French Equal Opportunities and Anti-Discrimination Commission (HALDE) in 2008 (i.e. two per cent of total cases), 615 such cases were reported in 2010 (five per cent of the total). According to HALDE, discrimination based on pregnancy, gender and family responsibilities affected 12 per cent of working women in 2010.
•   In the Russian Federation, in 2006 alone, the State Labour Inspectorate uncovered and stopped more than 22,900 cases of employer-perpetrated labour legislation violations related to working women. The most common types of violations were: dismissal of pregnant women and women with children under three years; non-payment of state social insurance during maternity leave; night work or work during holidays without the woman’s written consent; violations of standard recruitment and dismissal procedures for female workers; and violations of business trip procedures for pregnant workers or persons with family responsibilities.

 

 

 

5. Breastfeeding arrangements to help workers breastfeed or express milk at the workplace

 

Breastfeeding or nursing breaks are short periods that are reserved during the workday to breastfeed one’s child or express milk to be fed later to the child.

This breastfeeding facilities or nursing rooms are simply a conveniently located small clean space with a chair, access to clean water and a screen for privacy, where a worker can feed her baby or express her milk. More elaborate facilities can have a refrigerator and an outlet for an electric pump.

For many women, the lack of workplace support for breastfeeding makes working incompatible with breastfeeding.

Yet, supporting breastfeeding at work is a low cost intervention for employers, involves minimal disruption to the workplace  and brings benefits for employers including higher retention rates, lower employee absenteeism rates on account of improved child health, lower health care costs, enhanced employee morale and productivity and improved company image.

For the mother, unrestricted exclusive breastfeeding results in ample milk production, it is especially important where water is unsafe and it is suitable option for many HIV-positive mothers, especially in the presence of antiretroviral drugs (ARVs).

The World Health Organization recommends:

• Exclusive breastfeeding for babies until the age of 6 months
• Continued breastfeeding with appropriate complementary foods up to 2 years of age or beyond

 

Convention No. 183 calls for:

 

• The right to one or more daily breaks or a reduction in working time for the purpose of breastfeeding
• The length and number of breaks to be decided nationally
• Nursing breaks are to be counted as working time and remunerated

Recommendation No. 191 encourages breastfeeding facilities at the workplace.

Other elements that can help to support breastfeeding at work, are proper information, support from colleagues, flexible working time, childcare facilities and a breastfeeding policy.

Legislation in at least 121 countries (75 per cent) of the 160 with available data provides for paid or unpaid daily breaks or a daily reduction of hours of work for nursing workers, in addition to any other regular workplace breaks. This trend is observed consistently in all the regions, confirming the value that national legislation places on supporting this important stage of maternity in the workplace.

 

Globally, the share of countries lacking statutory provision of nursing breaks in 1994 decreased from 32 to 24 per cent in 2013. And almost two-thirds (75) of the countries with provisions allow for a duration of the entitlement to nursing breaks of between 6 and 23 months.

 

 

 

 

 

 

 

 

 

 

Provision of nursing facilities, 2013 (159 countries) (%)

 

Note: Figures may not add up to 100 per cent due to rounding.

Source: ILO Working Conditions Laws Database – Maternity Protection. Available at: http://www.ilo.org/travdatabase [1 Apr. 2014].
Breastfeeding / Regions

 

• Africa

 

In Africa, 39 countries (79 per cent) out of 49 provided nursing breaks. And 33 countries offer breastfeeding breaks for at least six months and, of those, 29 countries made provision for at least a year.

• Egypt provides breaks for up to two years.
• In Zimbabwe, nursing mothers can take their allocated time as either a one-hour break or as two 30-minute breaks

The trend towards the introduction of paid breaks was significant across regions, with the greatest change being in Africa, where just 47 per cent of countries with nursing breaks provided for these to be paid in 1994 but, by 2013, more than two-thirds (76 per cent) did. Cameroon, Ghana and Tanzania are among the countries introducing this entitlement.

In South Africa an example of a Family-friendly and baby-friendly initiative is found: in 2008, the First National Bank of South Africa, one of the country’s largest commercial banks, opened its first childcare centre. In order to compete in an international market it is important to attract and retain skilled personal. An efficient way to do so is through a comprehensive benefit scheme, namely a childcare centre for mothers to be able to reconcile their work obligations with their family responsibilities. The bank assigned childcare professionals to run the centre and worked closely with trade unions in order to ensure maximum efficiency. The daycare centre was filled rapidly, taking in children from three months to six years of age.

 

• Americas

 

In Latin America and Caribbean, 20 (69 per cent) out of the 29 countries, provided breaks. And, 11 countries provide at least six months of breastfeeding breaks, with four of these providing 12 months.

• Bolivia, Cuba, Dominican Republic and Peru provide 12 month
• Argentina and Chile offer up to two years

Brazil has recently approved the “Norms and Rules” to implement lactation facilities at the workplace. This is to enable working women to express their milk in hygienic conditions, to store it and take it home safely to feed their babies. This is not a law but a “sanitary rule”.

For the past year, advocates in Brazil have been identifying employers who have set up such lactation facilities. On 26 April 2010, a campaign to make the new norms known was launched throughout the country. A large gathering assembling entrepreneurs and decision-makers took place in Sao Paulo on that day.

In Colombia, the employer is bound to grant more frequent rest periods than the usual two breaks of 30 minutes each if the female employee produces a medical certificate indicating the reasons why she requires more frequent breaks.

In certain countries, nursing breaks may also be extended if there are no nursing facilities at the workplace. In the Bolivarian Republican of Venezuela, for example, the breaks are an hour long each instead of the customary 30 minutes.

Regulations on the provision of a special nursing room have been identified in Peru and Brazil:

• In Peru, from 23 August 2006, a supreme decree states that all institutions belonging to the public sector employing at least 20 women of reproductive age, have to set up a facility of around 10 square metres for the sole use of expressing milk. This is intended to harmonize family and work life. There are presently 180 such facilities in Peru.
• Brasil has recently approved the “Norms and Rules” to implement lactation facilities at the workplace. This is to enable working women to express their milk in hygienic conditions, to store it and take it home safely to feed their babies. This is not a law but a “sanitary rule”. For the past year, advocates in Brazil have been identifying employers who have set up such lactation facilities. On 26 April 2010, a campaign to make the new norms known was launched throughout the country. A large gathering assembling entrepreneurs and decision-makers took place in Sao Paulo on that day.
• In USA, currently, 24 US states, the District of Columbia and Puerto Rico have legislation related to  breastfeeding in the workplace. The new federal provision will provide a minimum level of support in all states, but it will not pre-empt a state law that provides stronger protections.

 

 

• Arab States Asia and Pacific

 

In Asia, 16 countries (69 per cent) out of the 23 granted nursing breaks to workers.

 

• In Mongolia, nursing mothers are entitled to two hours of breaks for the first six months from birth, then one hour until the twelfth month. In some cases, the nursing woman can choose how to distribute the total duration of the daily breastfeeding breaks.
• In Cambodia, nursing mothers can take their allocated time as either a one-hour break or as two 30-minute breaks.

In the United Arab Emirates Health experts are urging the government to double the amount of time that working mothers are allowed to breastfeed their babies. The call for longer statutory breaks – from one hour per day to two for the first 18 months after giving birth – was among 12 recommendations submitted to the government. They also called for an extension of paid maternity leave, from 45 days to at least 14 weeks.

 

 

• Europe and Central Asia

 

In Eastern European and Central Asian countries, 11 (79 per cent) out of 14 countries, granted nursing breaks. And eight out of ten Middle Eastern countries provided breaks.

 

Czech Republic, France, Italy, Portugal and Romania provide at least six months of breaks, with six offering a year.

 

• In Hungary, nursing mothers are entitled to two hours of breaks in the first six months after birth, then one hour’s break until the ninth month.
• In the Russian Federation and Tajikistan, mothers can choose to combine their breaks and take the permitted time at the beginning or end of the day.
• In Ireland, nursing mothers can choose to take the allocated breaks or reduce their working hours for 26 weeks after childbirth.

A maternity protection law came into force in Belgium in July 2002. It specifies in great detail a breastfeeding woman’s rights at the workplace, with seven chapters and eleven articles solely on breastfeeding breaks. Since trade unionists in many European countries report that breastfeeding breaks are a barrier to ratification of ILO Convention No. 183, the Belgian model may point toward a solution.

However, some details of the Belgian law, for instance the monthly medical certificate and the limitation of breastfeeding breaks to the first seven months after birth, would be too restrictive for countries where they are already well-accepted features of maternity protection at work

 

 

 

6. Beyond maternity and back to work: Coping with childcare

 

Responsibilities for the care of children do not end with maternity leave, and policies that support parents in reconciling paid work and family are vital for children’s health and development, and bring broader benefits to families, business and society.           

“Family responsibilities” refer specifically to responsibilities in relation to dependant children and other members of the immediate family who clearly need their care or support.

 

Family responsibilities have intensified due to increased women’s participation in paid work; the weakening of informal family supports; the growth in single-parent (mostly single mother) households, ageing populations, disease burdens (e.g. HIV and AIDS) migrations or other social and economic factors, including the economic, job and environmental crises. 

 

The ILO Convention on Workers with Family Responsibilities, 1981 (No.156) and Recommendation No.165 provides guidance on policies and measures to promote work–family balance, which include:

 

• Leave policies which allow workers to be absent from paid work for caring responsibilities, working time arrangements that enable working hours to be compatible with family responsibilities
• Work schedules that provide workers with more control to organize their own hours
• Childcare services that are reliable and affordable that enable workers to ensure care for their children during working hours
• Others (family benefits, measures to lighten unpaid care work, etc)

 

Types of Measures for Promoting

Work–Family Reconciliation

Existing public policies, programmes and services are rarely adequate to meet workers’ and employers’ needs for dependant care even in many industrialized countries; in developing countries the problems and challenges are even greater. However, there is growing recognition of the problems that workers are facing.

Gender inequalities in paid and unpaid work are perpetuated by the lack of work–family policies in general and by the fact that some policies are based on gendered assumptions about men’s and women’s roles.

Effective responses to work-family conflict often involve partnerships across a wide array of stakeholders at national and local levels. Governments, workers, and employers, together with civil society, have considerable opportunities to build such alliances and find collective solutions to the need for work– family reconciliation policies.

Policies should be designed in integrated and gender-responsive ways, addressing both workers’ and employers’ needs.

Beyond maternity and back to work / Regions

 

• Africa

 

• In South Africa, the government is implementing a non-conditional cash benefit programme, the Child Support Grant, in the form of child allowances paid to the caregiver, instead of the mother. The merit of this “follow the child” approach is to avoid the reinforcement of the role of women as primary caregivers.

In addition, the grant is not conditional on the mother having to attend training sessions or performing unpaid community work, a controversial feature of family and child allowances in other developing countries. In May 2006 the size of the grant stood at US$25.50 per month per child under 14 years of age. The total number of beneficiaries amounted to almost seven million children.

• Also in South Africa, the National Union of Metalworkers of South Africa (NUMSA) approached the motor company BMW regarding on-site childcare facilities which today provide learning centres for children aged from 3–6 years, as well as emergency back-up care and care during school holidays.
• In several countries in sub-Saharan Africa, home-based care schemes are promoted as a complement to traditional health care services. With the widespread epidemic of HIV and AIDS, health care demand in the region greatly exceeds its availability.

These programmes receive certain external funding from non-governmental (NGO), community and faith-based organizations. Unfortunately however, they suffer from a severe lack of funding, and the amount of training received by nurses is in many cases too rudimentary to be effective. Tasks can be demanding and stressful upon these care workers, who receive little compensation or none at all. With heavy reliance on external funding, the system is fragile and needs greater development to achieve its true potential.

 

• Americas

 

• Chile  ratified Convention No. 156 in 1994, in recognizing that lack of childcare poses significant barriers to women’s labour force participation.  Since 2005, the number of free public nursery places for children aged from 3 months to 2 years who are living in the poorest areas of Chile increased from 14,400 to 64,000 in 2008; in addition, kindergarten places for children aged 2–4 years, which numbered 84,000 in 2005, expanded to about 127,000 by 2009.

In 2006, the Chilean government launched the Chile Crece Contigo programme, which provides free childcare for the most vulnerable 40 per cent of the population. Between 2006 and 2009, a total of around 3,500 free centres were opened, caring for 70,000 infants. A law guaranteeing crèche and kindergarten rights for young children has been passed in Congress, allowing this programme to further expand.

 

• In Chile and Colombia, even without legislation, a number of enterprises, have policies that may be part of collective bargaining agreements, workplace measures or informal practices, that allow workers to reduce their working hours for family reasons, mainly in order to retain personnel and avoid turnover costs.

 

• In New York, in the agreement between Teamsters Local 445 and St Luke's Hospital in Newburgh, the union negotiated with the hospital to allow employees to switch working days with other employees, provided that employer approval was obtained.

 

• In Nicaragua, in 2006, the election agenda for Nicaraguans abroad, which was drawn up by a network of migrants (Red de Migrantes) included demands for developing social care programmes for migrants’ families, particularly children and adolescents who stay behind in the home country. This point on the agenda proposes a collective approach, with participation from the mayor and other local actors, to mitigate the high social costs of migration to those who stay behind. Until then, families alone had borne the brunt of these problems.

 

• In Ecuador, several local governments have responded to the demands of associations of migrants, by including care for family members who stay in the home country in their action plans. Quito, for example, offers psychological support to grandparents engaged in care-giving, and provides children with care and recreational activities.

 

• Bolivia has undertaken a large-scale home-based early childhood development and nutrition programme, PIDI (Proyecto Integral de Desarrollo Infantil) that provides daycare, nutrition and educational services to children who live in poor, predominantly urban areas. Under the programme, children from six months to six years old are cared for in groups of 15 in homes in their own neighbourhood. The community selects local women to become paid family daycarers. The women receive child development training prior to becoming educators, but are usually not highly trained. When children participating in the programme were compared with others on a range of bulk motor skills, fine motor skills, language skills and psychosocial skills; participation in PIDI had a positive impact on all test scores for children aged 3–4.5 years. Impacts were almost always positive for children who had participated in the programme for at least 13 months.

 

 

 

• Arab States Asia and Pacific

 

In India, the National Rural Employment Guarantee Programme (NREAGA), launched in 2005, recognizes that family responsibilities need to be considered alongside women’s ability to freely engage in paid economic activities.

The NREAGA includes on-site crèches among other worksite facilities (e.g. medical aid, drinking water and shade) that local implementing agencies have to set up in order to ensure the effective implementation of the employment-generating programme.

In addition to this, the Indian government launched in the early 1990s the Integrated Child Development Scheme, focusing mainly on decreasing maternal and infant mortality.

It is the largest programme of this type in the world, and includes a nutrition programme, requiring children’s presence in government-run childcare facilities.

However, a lack of means and infrastructure has prevented these centres from developing and in its current state this programme cannot be considered a viable childcare solution.

 

• Europe and Central Asia

 

A number of countries have legislation that allows reductions in working time for careers. For example, in Denmark, Germany and the Netherlands, all employees, with no requirement to have caring responsibilities, have the individual “right to part-time”, as part of flexible working time arrangements.

On the other hand, working parents in Austria, Finland, Greece, Italy, Portugal and the United Kingdom have the “right to request” flexible working hours, which could be reduced hours.

 

• In Germany, the Erfolgsfaktor Familie programme [Business Programme Success Factor Family] was launched in 2006 to promote family-friendly measures, which  include flexible working hours, teleworking, company-supported childcare and financial assistance to employers who set flexible working arrangements that promote work–family balance.

 

• In Cyprus, a programme entitled “Promotion of flexible forms of employment (FFE)” was launched for the period 2007–2013. This programme provides a scheme to subsidize businesses/organizations that promote flexible employment regulations particularly addressed to combating long-term unemployment and people with dependants (a majority of whom are women).

 

•   In Romania, women have the right to return to the same position after their statutory parental leave. If they do not take the leave in full, they can choose either to take reduced working time or more flexible working hours. And, if women with children under six have no kindergarten available, they are allowed to work part-time, with their work being considered full time in terms of seniority.
• In France, from 1998 to 2008, a statutory 35-hour week for all workers was introduced. While its main focus on employment creation, the measure had a largely positive impact on work–family balance for a majority of parents with school-age children, although less so for parents in the private sector who worked non-standard hours with little control over their working time.

 

• For children under the age of 20 with high levels of disability, parents are allowed up to 310 days of leave within a three year period. Benefits depend on the duration of work in the enterprise as well as family structure.
• In Ireland, for workers with at least 12 months of continuous service, three days of fully paid leave is available to care for disabled children. Unpaid leave however can go up to a period of 65 weeks if necessary.
• In Italy, workers are entitled to up to two years of fully paid leave to care for disabled children, with a benefit ceiling of €36,151. However, fathers and mothers cannot take this leave at the same time.
• In Hungary the “Start Plus” program was launched by the government  encouraging employers to hire people returning from long-term unemployment, including women returning from childcare. An incentive is given to employers in the form of reductions of their social security contributions.
• In Sweden the government launched a programme to encourage employers to hire persons enrolled in the Public Employment Service for at least 24 months. A cash incentive was given by the government to companies to help to pay the employee’s salary, up to a certain ceiling. Although it had no specific gender orientation, this programme proved to benefit women wishing to return to work but who were unable to do so.
• In Switzerland, the careers advice and training office of the Canton of Geneva has a special programme, Femme et Emploi (Women and Employment), which provides counselling and support for women who have been out of the labour market and wish to return to work. The programme helps women to assess their capacities, interests and constraints. Initiatives include additional training or internships in enterprises, as well as help with finding a job.