The Safety, Health and Welfare at Work (General Application) Regulations 2007 (the 'Regulations) which were issued pursuant to the Safety, Health & Welfare at Work Act 2005 (the 2005 Act) came into operation on 1st November, 2007.

Chapter 2 of Part 6 of the Regulations deals with the protection of pregnant, post-natal and breastfeeding employees and replaces the Safety, Health and Welfare at Work (Pregnant Employees etc.) Regulations 2000 which are revoked from the above date.

The Regulations apply to pregnant employees, employees who are breastfeeding and post-natal employees. 'An employee who is breastfeeding' means an employee who, having given birth not more than 26 weeks previously, is breastfeeding. 'A post-natal employee' means an employee who gave birth not more than 14 weeks preceding a material date.

On receipt of notification that an employee is pregnant or breastfeeding an employer must:

1. Assess the risk to the health or safety of that employee and any possible effect on the pregnancy of, or breastfeeding by, that employee resulting from any activity at the employee’s place of work likely to involve a risk of exposure to any agent, process or working condition referred to in Part A of Schedule 8 of the Regulations.
   
   
2. Assess any risk to safety or health likely to arise from the exposure of a pregnant employee to an agent or working condition listed in Part B of Schedule 8 of the Regulations resulting from an activity at that employer’s workplace.
   
   
3. Assess any risk to safety or health likely to arise from the exposure of an employee who is breastfeeding to an agent or working condition listed in Part C of Schedule 8 of the Regulations resulting from any activity at that employer’s workplace.

Part A of Schedule 8 is divided into (i) physical, biological and chemical agents, (ii) processes and (iii) working conditions, that will damage either the employee’s safety or health or that of her developing child and it applies to pregnant, post natal and breastfeeding employees. Examples of physical agents are noise, vibration or extremes of hot or cold.

Part B of Schedule 8 applies to pregnant employees only and Part C of Schedule 8 applies only to breastfeeding employees.

To carry out this assessment, the employer must identify the type, quantity and duration of exposure to any agent, process or working condition. Where the risk assessment identifies possible exposure to these specified risks, the employer must take the preventative and protective measures necessary to ensure the safety and health of such employees and must ensure the employee is not required to perform duties for which the assessment reveals such risk. A competent person in accordance with Section 18 of the 2005 Act should be appointed, preferably from within the employer’s employment, to carry out these preventative and protective measures.

The employer must assess if there are any practical ways the risk can be avoided by following the three steps set out below:

Step 1: Adjust the working conditions and/or the hours of work (or both) of the employee concerned so that exposure to such risk is avoided. If Step one is not technically or objectively feasible or both or cannot reasonably be required on duly substantiated grounds, Step 2 should be followed

Step 2: Provide suitable alternative work which does not present a risk. If this is not possible the employer should follow Step 3.

Step 3: Assist the employee in receiving health and safety leave under Section 18 of the Maternity Protection Act 1994 (as amended).

The Maternity Protection Act 1994 provides for leave to protect the health and safety of pregnant employees. It provides for the granting of leave by the employer in the circumstances described above where Step 1 and Step 2 are not feasible. Where the employee is granted health and safety leave she is entitled to receive, on request to her employer, a certificate stating that she has been granted leave for whichever of the reasons is relevant in the circumstances, containing any supplementary information and specifying the date on which the leave began and its expected duration. The health and safety leave granted to the employee shall end seven days after she receives a notification from her employer that she can return to work, or, if earlier, the date she returns to work.

Under the Maternity Protection legislation an employee is entitled to remuneration from her employer for the first 21 days of health and safety leave. Health and safety benefit is payable for the remainder of the leave if the qualifying conditions are met.

It is also worth noting that if an employee has a medical certificate stating that for health and safety reasons she is required not to perform night work during the pregnancy or for 14 weeks afterwards, the employer must remove her from night work by either transferring her to day time duties or, if this is not feasible, granting the employee leave.

"Night Work" is defined under Section 151 of the Regulations as work in the period between 11.00 p.m. and 6.00 a.m. the next following day, where (a) the employee works at least three hours (not necessarily consecutive) in that period as a normal course, or (b) where at least 25% of the employee’s working time is performed between those times.

An employer must also take appropriate steps to ensure that an employee or her representative, or both are provided with information on the results of the risk assessment and the measures to be taken concerning the employee’s safety and health.

The penalties as set out in the 2005 Act apply where a person contravenes the statutory provisions. Accordingly, a person guilty of an office is liable on summary conviction to a fine not exceeding 3,000 Euro or imprisonment for a term not exceeding 6 months or both, or a conviction on indictment to a fee not exceeding 3,000,000 Euro or imprisonment for a term not exceeding 2 years or both.

April 2009.

For further information please contact Jennifer O'Neill.