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Document 01992L0085-20190726
Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC)
Consolidated text: Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC)
Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC)
ELI: http://data.europa.eu/eli/dir/1992/85/2019-07-26
01992L0085 — EN — 26.07.2019 — 003.001
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COUNCIL DIRECTIVE 92/85/EEC of 19 October 1992 (OJ L 348 28.11.1992, p. 1) |
Amended by:
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Official Journal |
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No |
page |
date |
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DIRECTIVE 2007/30/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 20 June 2007 |
L 165 |
21 |
27.6.2007 |
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DIRECTIVE 2014/27/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 26 February 2014 |
L 65 |
1 |
5.3.2014 |
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REGULATION (EU) 2019/1243 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 20 June 2019 |
L 198 |
241 |
25.7.2019 |
COUNCIL DIRECTIVE 92/85/EEC
of 19 October 1992
on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC)
SECTION I
PURPOSE AND DEFINITIONS
Article 1
Purpose
Article 2
Definitions
For the purposes of this Directive:
pregnant worker shall mean a pregnant worker who informs her employer of her condition, in accordance with national legislation and/or national practice;
worker who has recently given birth shall mean a worker who has recently given birth within the meaning of national legislation and/or national practice and who informs her employer of her condition, in accordance with that legislation and/or practice;
worker who is breastfeeding shall mean a worker who is breastfeeding within the meaning of national legislation and/or national practice and who informs her employer of her condition, in accordance with that legislation and/or practice.
SECTION II
GENERAL PROVISIONS
Article 3
Guidelines
The guidelines referred to in the first subparagraph shall also cover movements and postures, mental and physical fatigue arid other types of physical and mental stress connected with the work done by workers within the meaning of Article 2.
To this end, Member States shall bring these guidelines to the attention of all employers and all female workers and/or their representatives in the respective Member State.
Article 4
Assessment and information
For all activities liable to involve a specific risk of exposure to the agents, processes or working conditions of which a non-exhaustive list is given in Annex I, the employer shall assess the nature, degree and duration of exposure, in the undertaking and/or establishment concerned, of workers within the meaning of Article 2, either directly or by way of the protective and preventive services referred to in Article 7 of Directive 89/391/EEC, in order to:
Article 5
Action further to the results of the assessment
Article 6
Cases in which exposure is prohibited
In addition to the general provisions concerning the protection of workers, in particular those relating to the limit values for occupational exposure:
pregnant workers within the meaning of Article 2 (a) may under no circumstances be obliged to perform duties for which the assessment has revealed a risk of exposure, which would jeopardize safety or health, to the agents and working conditions listed in Annex II, Section A;
workers who are breastfeeding, within the meaning of Article 2 (c), may under no circumstances be obliged to perform duties for which the assessment has revealed a risk of exposure, which would jeopardize safety or health, to the agents and working conditions listed in Annex II, Section B.
Article 7
Night work
The measures referred to in paragraph 1 must entail the possibility, in accordance with national legislation and/or national practice, of:
transfer to daytime work; or
leave from work or extension of maternity leave where such a transfer is not technically and/or objectively feasible or cannot reasonably by required on duly substantiated grounds.
Article 8
Maternity leave
Article 9
Time off for ante-natal examinations
Member States shall take the necessary measures to ensure that pregnant workers within the meaning of Article 2 (a) are entitled to, in accordance with national legislation and/or practice, time off, without loss of pay, in order to attend ante-natal examinations, if such examinations have to take place during working hours.
Article 10
Prohibition of dismissal
In order to guarantee workers, within the meaning of Article 2, the exercise of their health and safety protection rights as recognized under this Article, it shall be provided that:
Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 2, during the period from the beginning of their pregnancy to the end of the maternity leave referred to in Article 8(1), save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent;
if a worker, within the meaning of Article 2, is dismissed during the period referred to in point 1, the employer must cite duly substantiated grounds for her dismissal in writing;
Member States shall take the necessary measures to protect workers, within the meaning of Article 2, from consequences of dismissal which is unlawful by virtue of point 1.
Article 11
Employment rights
In order to guarantee workers within the meaning of Article 2 the exercise of their health and safety protection rights as recognized in this Article, it shall be provided that:
in the cases referred to in Articles 5, 6 and 7, the employment rights relating to the employment contract, including the maintenance of a payment to, and/or entitlement to an adequate allowance for, workers within the meaning of Article 2, must be ensured in accordance with national legislation and/or national practice;
in the case referred to in Article 8, the following must be ensured:
the rights connected with the employment contract of workers within the meaning of Article 2, other than those referred to in point (b) below;
maintenance of a payment to, and/or entitlement to an adequate allowance for, workers within the meaning of Article 2;
the allowance referred to in point 2 (b) shall be deemed adequate if it guarantees income at least equivalent to that which the worker concerned would receive in the event of a break in her activities on grounds connected with her state of health, subject to any ceiling laid down under national legislation;
Member States may make entitlement to pay or the allowance referred to in points 1 and 2 (b) conditional upon the worker concerned fulfilling the conditions of eligibilty for such benefits laid down under national legislation.
These conditions may under no circumstances provide for periods of previous employment in excess of 12 months immediately prior to the presumed date of confinement.
Article 12
Defence of rights
Member States shall introduce into their national legal systems such measures as are necessary to enable all workers who should themselves wronged by failure to comply with the obligations arising from this Directive to pursue their claims by judicial process (and/or, in accordance with national laws and/or practices) by recourse to other competent authorities.
Article 13
Amendments to Annex I
The Commission is empowered to adopt delegated acts in accordance with Article 13a to make strictly technical amendments to Annex I, in order to take account of technical progress, changes in international regulations or specifications and new findings.
Where, in duly justified and exceptional cases involving imminent, direct and serious risks to workers’ and other persons’ physical health and safety, imperative grounds of urgency require action in a very short timeframe, the procedure provided for in Article 13b shall apply to delegated acts adopted pursuant to this Article.
Article 13a
Exercise of the delegation
Article 13b
Urgency procedure
Article 14
Final provisions
▼M1 —————
Article 15
This Directive is addressed to the Member States.
ANNEX I
NON-EXHAUSTIVE LIST OF AGENTS, PROCESSES AND WORKING CONDITIONS
referred to in Article 4 (1)
A. Agents
1. |
Physical agents where these are regarded as agents causing foetal lesions and/or likely to disrupt placental attachment, and in particular:
(a)
shocks, vibration or movement;
(b)
handling of loads entailing risks, particularly of a dorsolumbar nature;
(c)
noise;
(d)
ionizing radiation ( *1 );
(e)
non-ionizing radiation;
(f)
extremes of cold or heat;
(g)
movements and postures, travelling — either inside or outside the establishment — mental and physical fatigue and other physical burdens connected with the activity of the worker within the meaning of Article 2 of the Directive. |
2. |
Biological agents Biological agents of risk groups 2, 3 and 4 within the meaning of points 2, 3 and 4 of second paragraph of Article 2 of Directive 2000/54/EC of the European Parliament and of the Council ( 2 ), in so far as it is known that such agents or the therapeutic measures necessitated by them endanger the health of pregnant women and the unborn child, and in so far as they do not yet appear in Annex II. |
3. |
Chemical agents The following chemical agents in so far as it is known that they endanger the health of pregnant women and the unborn child and in so far as they do not yet appear in Annex II:
(a)
substances and mixtures which meet the criteria for classification under Regulation (EC) No 1272/2008 of the European Parliament and of the Council ( 3 ) in one or more of the following hazard classes and hazard categories with one or more of the following hazard statements, in so far as they do not yet appear in Annex II:
—
germ cell mutagenicity, category 1A, 1B or 2 (H340, H341);
—
carcinogenicity, category 1A, 1B or 2 (H350, H350i, H351);
—
reproductive toxicity, category 1A, 1B or 2 or the additional category for effects on or via lactation (H360, H360D, H360FD, H360Fd, H360Df, H361, H361d, H361fd, H362);
—
specific target organ toxicity after single exposure, category 1 or 2 (H370, H371);
(b)
chemical agents in Annex I to Directive 2004/37/EC of the European Parliament and of the Council ( 4 );
(c)
mercury and mercury derivatives;
(d)
antimitotic drugs;
(e)
carbon monoxide;
(f)
chemical agents of known and dangerous percutaneous absorption. |
B. Processes
Industrial processes listed in Annex I to Directive 2004/37/EC.
C. Working conditions
Underground mining work.
ANNEX II
NON-EXHAUSTIVE LIST OF AGENTS AND WORKING CONDITIONS
referred to in Article 6
A. Pregnant workers within the meaning of Article 2 (a)
1. Agents
(a) Physical agents
Work in hyperbaric atmosphere, e.g. pressurized enclosures and underwater diving.
(b) Biological agents
The following biological agents:
unless the pregnant workers are proved to be adequately protected against such agents by immunization.
(c) Chemical agents
Lead and lead derivatives in so far as these agents are capable of being absorbed by the human organism.
2. Working conditions
Underground mining work.
B. Workers who are breastfeeding within the meaning of Article 2 (c)
1. Agents
(a) Chemical agents
Lead and lead derivatives in so far as these agents are capable of being absorbed by the human organism.
2. Working conditions
Underground mining work.
Statement of the Council and the Commission concerning Article 11 (3) of Directive 92/85/EEC, entered in the minutes of the 1608th meeting of the Council (Luxembourg, 19 October 1992)
THE COUNCIL AND THE COMMISSION stated that:
‘In determining the level of the allowances referred to in Article 11 (2) (b) and (3), reference shall be made, for purely technical reasons, to the allowance which a worker would receive in the event of a break in her activities on grounds connected with her state of health. Such a reference is not intended in any way to imply that pregnancy and childbirth be equated with sickness. The national social security legislation of all Member States provides for an allowance to be paid during an absence from work due to sickness. The link with such allowance in the chosen formulation is simply intended to serve as a concrete, fixed reference amount in all Member States for the determination of the minimum amount of maternity allowance payable. In so far as allowances are paid in individual Member States which exceed those provided for in the Directive, such allowances are, of course, retained. This is clear from Article 1 (3) of the Directive.’.
( 1 ) OJ L 123, 12.5.2016, p. 1.
( *1 ) See Directive 80/836/Euratom (OJ No L 246, 17.9.1980, p. 1).
( 2 ) Directive 2000/54/EC of the European Parliament and of the Council of 18 September 2000 on the protection of workers from risks related to exposure to biological agents at work (seventh individual directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ L 262, 17.10.2000, p. 21).
( 3 ) Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC, and amending Regulation (EC) No 1907/2006 (OJ L 353, 31.12.2008, p. 1).
( 4 ) Directive 2004/37/EC of the European Parliament and of the Council of 29 April 2004 on the protection of workers from the risks related to exposure to carcinogens or mutagens at work (Sixth individual Directive within the meaning of Article 16(1) of Council Directive 89/391/EEC) (OJ L 158, 30.4.2004, p. 50).