The Maternity Protection Act 1994 & 2004 entitles expectant working mothers to Maternity Leave, Additional Maternity Leave, time off for ante-natal and post-natal medical visits, specific leave for fathers, right to return to work, protection of certain employment rights while on leave, protection against dismissal etc.
- The Act covers anybody under a contract of employment. This includes apprentices, employees on probation and employment agency workers. It also includes male employees to a right to leave under specific circumstances.
- The employee is entitled to a minimum of twenty six paid (by Social Welfare) consecutive weeks-maternity leave.
- The employee may, if so desired, take an additional sixteen weeks leave immediately following maternity leave at her own expense.
- If an employee is under a fixed term contract, and this contract ends while on maternity leave, the leave ends on the same day.
- The employee is entitled to return to the same job she had prior to her absence on maternity leave or its equivalent.
- Payment during the twenty six weeks maternity leave is made by the Department of Social Welfare.
When Maternity Leave is taken
- The employee may take the twenty six weeks provided she takes no less than two weeks before the due date and at least 4 weeks after the birth.
Notification to the Employer
- The employee must notify the employer in writing stating the date on which the leave is due to commence and give her employer at least four weeks notice.
- A medical certificate confirming the pregnancy and advising of the expected week of confinement must accompany the notification.
- In the case of Additional Maternity Leave, the employer must also be notified in writing by the employee if she intends taking Additional Maternity Leave. This can be given at the same time as the relevant notification or not later than four weeks before the date, which would have been the employees expected date of return to work.
- If an employee has less than four weeks’ maternity leave left when her baby is born, then her maternity leave may be extended so that she still has four weeks’ maternity leave after her confinement. The maximum extension is of four weeks.
- The employer must be advised in writing of the likelihood of extended maternity leave due to such an event. This should be given as soon as possible in writing after the birth of the revised return to work date.
- In the event of a birth occurring more than four weeks before it is expected and if the employee has not already commenced maternity leave, she is entitled to take twenty two weeks’ maternity leave from that point. For example, a woman notifies her employer that she is due to go on maternity leave in six weeks’ time. The following week, she gives birth pre-maturely. In this case, she is entitled to take twenty two weeks’ maternity leave from this point on.
- The employer must be advised in writing of her maternity leave within two weeks of the confinement. Another person can provide this notice on behalf of the employee.
Still Births and Maternity Leave
In the event of a stillbirth occurring after the 24th week of pregnancy, the mother is still entitled to 26 weeks’ maternity leave
Ante Natal & Post Natal Medical Visits
- There is no limit to the number or duration of medical appointments; this does not include voluntary appointments/classes. Employers must also take into consideration the time for travelling to and from appointment.
- The employee is entitled to full pay while attending such appointments as long as they occur during her normal working hours.
- Two weeks notice in writing must be given to the employer in respect of a scheduled medical visit, this notice must state the date and time on which the visit is due to occur.
- If for urgent medical reasons, the employee cannot give two weeks notice, the employee must provide a medical certificate. She must also provide an explanation as to why it was not possible to give the employer two weeks notice of the visit within seven days of the day the visit occurred.
Ante Natal Classes
- An expectant mother is entitled to time-off from her work, without loss of pay, to attend one set of ante natal classes other than the last three classes.
- An expectant father of a child (if he is employed under a contract of employment) is entitled to time-off work, without loss of pay, to attend the last two ante-natal classes in a set before birth.
Returning to Work
- The Act does not oblige an employee who has taken Maternity Leave or Additional Maternity Leave to return to work but rather allows her to do so. The employer must receive written notification of at least four weeks of the return to work date after maternity leave or her additional maternity. Notice of return to work, may be written by another person on behalf of the mother if so desired.
- If the employee does not provide proper notice of her return to work this could affect her right to return to work contained in the Act.
- The employee is entitled to return to work with the same employer or, if the workplace has changed ownership, the new owner. The employee is entitled to return to the same job she had prior to her absence or its equivalent. Her contract must remain unaltered or identical. In other words, she is entitled to return to the same grade, the same conditions, and the same level of remuneration.
In addition, the employee is entitled to any benefits or improvements which would have been made to her contract had she been continuously at work e.g. pay increases
The employee does not lose the right to return to work where the ownership of the firm has changed.
Father’s entitlement to leave
In the event of the mother’s death occurring within 24 weeks of the birth, the father is entitled to leave. This is usually paid by social welfare subject to the father qualifying by way of his social insurance contributions.
- In the event of the mother’s death occurring within 16 weeks of the birth, the father will be entitled to leave up to the end of that 16th Thus for example, if a mother dies two weeks after the week of confinement, the father is entitled to 14 weeks’ leave. If she dies in childbirth, the father is entitled to 14 weeks leave. If the mother dies after the expiry of the 10th week, the period ends at the end of the 14th week following the week of her confinement.
- In the event of the mother’s death occurring after the end of the 16th week, but before the end of the 24th week after the week of confinement, the father is also entitled to leave. In this case, the period of leave ends at the end of the 24th week following the week of confinement. For example, if the mother dies 16 weeks after the week of confinement, the father is entitled to eight weeks’ leave. This is referred to as additional father’s leave.
Notification: This should be in writing not later than the day on which his leave begins, stating the length of leave to which he believes he is entitled. Employers can request a copy of the death and birth certificates. Leave to which the father is entitled must begin within seven days of the mother’s death.
Protection of Employment Rights
An employee on
– Maternity leave
– Additional maternity leave
– Father’s leave (in event of mother’s death)
– Additional father’s leave
– Health and safety leave
– Time off for ante-natal or post-natal care
– Time off or reduced hours for breastfeeding
– Time off for ante-natal classes
is deemed to be in the employment of the employer while absent. The employee is to be treated as if s/he is not absent. The absence will not affect any rights or obligations related to the employee’s employment conferred by legislation, contract or otherwise.
- A period of absence from work for any of the above purpose is not to be treated as part of any other leave (including sick leave or annual leave).
- Similarly maternity leave or ante-natal visits must not be counted as part of the employee’s sick record.
- During Maternity Leave, Additional Maternity Leave, Health and Safety Leave, Father’s Leave and during natal care absences, employment rights such as annual leave, increments and seniority are preserved and will build up as if the employee was not absent from work.
- During Maternity Leave/Additional Maternity Leave, Father’s Leave the employee also retains entitlements to leave in lieu of public holidays occurring during such absences or to one of the alternatives outlined in the Organisation of Working Time Act 1997.
- Employees on Health and Safety Leave retain their entitlement to annual holidays.
- All periods of probation, training or apprenticeships are suspended during protective leave and the employee must complete whatever proportion remains when s/he returns to work.
- An employee cannot be issued with notice of termination of employment or may not be suspended while on Protective Leave. Notices of dismissal, redundancy or suspension given prior to the Protective Leave that is due to take effect during such leave is extended to the end of the relevant period.
- Employees can not be dismissed or discriminated on the grounds of pregnancy etc. or for utilising Protective Leave.
Termination of additional maternity leave due to illness of the Mother
An employee who is sick who wishes to end additional maternity leave may request her employer to terminate the additional maternity leave at any time:
- During the last 4 weeks of maternity leave (where the employer has been notified of her intention to take additional maternity leave) or
- During the additional maternity leave.
There is no entitlement to termination of additional maternity leave in the event of sickness of the mother. If the employer agrees, the additional maternity leave will end on a date agreed by the employer and employee. This will not be earlier than the beginning of the employee’s sickness and not later than the date when additional maternity leave would have ended.
Where additional maternity leave is terminated on the employee’s request:
- Any absence from work (after the termination of the additional maternity leave) is treated in the same way as any absence from work of the employee due to sickness
- The employee is not entitled to the additional maternity leave or any part of it not taken by her.
An employee who is sick who wishes to terminate additional maternity leave must:
- Request in writing (by her or on her behalf) her employer to terminate the additional maternity leave
- An employer must notify the employee concerned in writing of the employer’s decision in relation to the request as soon as reasonably practicable.
Postponement of leave due to hospitalisation of a child
An employee on:
- Maternity leave (after 14 weeks maternity leave with not less than 4 weeks being after the date of confinement), additional maternity leave,
- Father’s leave, additional father’s leave, may request his/her employer to postpone part of the leave and/or additional leave (or part of it) if the child (in connection with whose birth he/she is on, or is entitled to that leave) is hospitalised. There is no entitlement to postponement of leave/additional leave if the child is hospitalised.
An employer may agree to postpone the leave and the employee will return to work on a date to be agreed and be entitled to take the postponed leave in one continuous period beginning not later than 7 days after the discharge of the child from hospital. If an employee postpones leave and returns to work and during the period of postponement he/she is absent from work due to sickness the employee is deemed to begin the postponed leave unless, the employer is notified that s/he does not wish to begin the postponed leave.
If this notification happens:
- The absence from work of the employee due to sickness is to be treated in the same manner as any absence from work of the employee due to sickness and
- The employee forfeits the postponed leave
The Maternity Protection (Postponement of Leave) Regulations provide that the maximum period of postponement of leave is 6 months.
An employee who wishes to postpone part of his/her leave because of the hospitalisation of the child must notify his/her employer in writing (or have the employer notified) of the request.
On request the employer must be furnished with:
- A letter or other appropriate document from the hospital confirming the hospitalisation of the child and
- A letter or other appropriate document from the hospital or the child’s doctor confirming that the child has been discharged and the date of discharge.
26 • About the Maternity Protection Acts 1994 and 2004
An employer must notify the employee in writing of the employer’s decision as soon as practicable. In order to avail of resumed leave an employee must notify his/her employer in writing (or have the employer notified) as soon as reasonably practicable but not later than the day on which the leave begins of his/her intention to take the leave. This notification may be revoked by a further notification in writing given by the employee. An employer may waive the right to receive a notification.
Health and Safety Leave
- The Safety Health & Welfare at Work Act, 2005 entitles all pregnant workers and workers who have recently given birth or are breast-feeding to a safe work environment. The work environment must be free from health risks to either mother or baby.
- Employers must carry out a risk assessment of the company. If a risk has been identified this must be removed. If this is not possible the employer should transfer the employee to suitable alternative work (alternative work must be appropriate to the employee in all circumstances). However, if this is not available the employee should then be placed on Health and Safety Leave.
- The employer must furnish the employee who is placed on Health and Safety Leave with a certificate if she asks for one. This certificate should state the reason for the leave, the commencement date and how long the leave is expected to last. The employee who has been granted leave maybe required to present this certificate to the Department of Social and Family Affairs so that she may receive health and safety benefit.
- The employer must pay the employee her full normal rate of pay for the first 21 days of her leave. After this period the employee may be entitled to a Social Welfare Benefit, subject to her PRSI contributions. The employee claming this benefit may be requested to present the certificate of Health and Safety Leave to the Department of Social and Family Affairs.
NOTE: The employer must carry out a risk assessment and take the appropriate action once he/she is made aware that the employee is pregnant, recently given birth or breastfeeding. The employee may decide to inform her employer through her supervisor, or by her doctor directly contacting the employer.
Returning to Work after Health and Safety Leave
- This leave ends when there is no longer a risk, suitable work becomes available or with the commencement of Maternity Leave. If the employee is on a fixed term contract, the leave ends on the day the contract expires. The Health and Safety Leave relating to breast-feeding mothers ends if she ceases to breast-feed. If the employee has not ceased breast feeding the leave will automatically cease by the end of the 26th week following the birth of the child.
- If the employee ceases to be pregnant or ceases breast-feeding she must immediately give notice in writing to her employer. The employer must then enable the employee to return to her previously held position as soon as possible. The employer must send notification of this to the employee in writing, the employer must be satisfied that it is safe for the employee to return before sending this notice. The employee must return to work no later than seven days after receiving this notice. If the employer removes the risk or finds suitable alternative employment for the employee the same procedure applies i.e. send notification in writing to the employee and allow the employee 7 days after receiving the notification to return to work.
An employee who is breastfeeding is entitled without loss of pay for 26 weeks following the birth, at the option of her employer, to
– Time off from her work to breastfeed in the workplace or
– A reduction of working hours for breastfeeding outside work
Breastfeeding is defined to include expressing breast milk and feeding it to a child immediately or storing it for the purposes of feeding it to the child at a later time. An employer is not required to provide facilities for breastfeeding in the workplace where it would cost more than nominal cost.
An employee who is breastfeeding in work is entitled, without loss of pay to take 1 hour from her work each working day as a breastfeeding break which may be taken in the form of: Time off From Work or
- One 60 minute break
- Two 30 minute breaks
- Three 20 minute breaks
as agreed by her and her employer.
An employee who is breastfeeding outside work is entitled without loss of pay to have her working hours reduced by 1 hour each working day, which may be reduced in the form of
- One 60 minutes
- Two periods of 30 minutes
- Three periods of 20 minutes
as agreed by her and her employer.
Where an employee who is breastfeeding proposes to take time off from her work or have reduced working hours she must notify her employer in writing of the proposal as soon as reasonably practicable but not later than the latest date for her to notify her employer of her intention to return to work, and of the date on which she expects to return to work and
- Furnish on request the birth certificate of the child (or any other document establishing the date of birth of the child).
Either the employee or the employer can refer a dispute that relates to rights or entitlements under the Maternity Acts to the Workplace Relations Commission.
View the full document here and see a ISME Sample Maternity Leave Policy and Form. You can also download the document below: