The protection of those who work constitutes the ineradicable foundation of any society that wants to be respectful of human values.
The legal framework protecting maternity is regulated by rules that were created for protectionist purposes aimed at protecting the health and safety of female workers. To understand the rights due to the working mother as such (protection must also apply to workers who have received children for adoption and foster care until they are seven months old) we must start from the source that speaks of women's rights within the world of work and this source is Article 37, Paragraph 1 of the Constitution:
"A working woman shall have the same rights and, for equal work, the same wages as a worker. Working conditions shall permit the fulfillment of her essential family function and ensure special adequate protection for the mother and the child."
Starting, therefore, from Article 37 of the Constitution we go on to examine the complex regulatory framework governing maternity protection and how it is fundamental to the proper drafting of individual protocols and the DVR within the environment in which the woman performs her work. Motherhood,is a fundamental right. Discrimination against women because of their pregnancy or maternity status is a serious violation of the principle of equality. Such discrimination is also called gender plus. However, these are discrimination factors that also involve parenthood, but in this case it does not discriminate on the basis of gender but on the basis of role.
The task of the Employer and the Medical Officer in drafting the DVR must, therefore, have as one of its primary purposes the recognition of the social value of motherhood and the protection of human life from its inception.
Protection in the DVR
Manner of changing working conditions for the purpose of risk elimination must be evaluated. For example, the female worker may not be assigned to night work (24.00-6-00) in the first year of the child's life and is entitled to two hours of daily rest (if activities over 6 hours) or in reference to Article 37 of the Constitution where adequate protection is also made explicit to the child, in the case of lactation protracted beyond the seventh month the no exposure to work activities at risk for breastfeeding with the possible consequent formulation of a judgment of unsuitability for such duties.
Decree L.D. 151/01,(into which L.D. Nov. 25, 1996 No. 645 "Transposition of Directive 92/85/EEC on the improvement of the safety and health at work of pregnant workers, workers who have recently given birth or are breastfeeding" converges) requires the Employer to integrate the task/specific risks indicated under L.D.Lgs. 81/08 in order to preventively assess the health risks of pregnant, nursing and lactating workers and in particular the risks of exposure to physical, chemical or biological agents (following up Legislative Decree No. 645 of November 25, 1996).
Ministry of Labor Circular Prot. 3328 dated 12/16/2002 explicitly indicates that the Employer must make a preventive assessment of risks related to the health and safety of pregnant workers and at the same time the protective measures that must be taken. Such a risk analysis must be informed of the female workers when they enter their specific work task, likewise, it is very important for employees to communicate their status so that they can assess the specific risks and take due protection in relation to their task.
A special section must therefore be included within the DVR with reference to pregnant workers in which the Employer with the RSPP must, in addition to assessing the risks in the workplace (risk of injury and health risks), identify and evaluate the tasks that may be at risk for pregnant workers and assess any generic risks present in the workplace. Because of this in the event that there is a job at risk, workers of childbearing age should be informed that they should report their pregnancy status in a timely manner.
The procedure for protecting the female worker in the workplace can schematically follow the following steps:
- The female worker must notify her Employer of her pregnancy, by means of the appropriate certificate completed by the gynecologist.
- The Employer verifies whether the job of the worker is among those at risk for pregnancy, including by seeking the opinion of the Occupational Physician. In the event that the task performed is found to be at risk, the employer shall evaluate any alternative tasks to which the pregnant worker could be assigned and verify their compatibility, if it does not result in the possibility of assigning the worker to non-risk tasks, the worker will apply, through a special application, to the Provincial Directorate of Labor for a work prohibition for "hazardous, strenuous, unhealthy work activity prior to childbirth" referred to in Art.17 paragraph 2 lett. B and C of Legislative Decree 151/2001. .
- The employer, if the task is not at risk, must inform the worker and RLS of the risks present in the workplace, the activities that must be avoided and the appropriate PPE, the administrative and contractual protection rules provided.
In case of serious complications related to gestation or pre-existing forms of morbidity that could be aggravated by pregnancy, the pregnant woman shall produce the relevant documentation to the relevant ASL office so as to obtain the provision of early disqualification from work that is issued by the Provincial Labor Department. In case of the absence of such complications, the pregnant woman can take Maternity Leave.
Maternity Leave
.Maternity leave is defined as the employee's mandatory abstention from work for a period of 5 months preceding and following childbirth. During these 5 months, there is a prohibition for the employer to employ women. The total duration of maternity leave is 5 months and can be taken:
- during the two months preceding the expected date of childbirth;
- where delivery occurs after that date, for the period between the presumed date and the actual date of delivery;
- during the three months following delivery.
Or:
- one month prior to delivery;
- and four months thereafter (in order to work until the eighth full month of gestation, the worker must obtain a medical certificate showing that this choice does not harm the health of the unborn child or the pregnant woman).
There must also be a procedure for returning to work. At the time when a worker on compulsory abstention informs the Employer of the birth of her child, the Employer will assess whether the task performed falls among those at risk for breastfeeding, evaluating the availability of any alternative tasks and requesting the opinion of the occupational physician. The worker will apply, using the appropriate form, to the Provincial Directorate of Labor for authorization for exemption from work (which can be granted for up to a maximum of seven months after childbirth) for the reason referred to in Article 17 paragraph 2 letter B and C of Legislative Decree 151/01.
This certification is renewable, and it is expected that upon suspension the worker will be examined for suitability judgment.
The proper drafting of the Appendix for pregnant women to the DVR therefore allows for improved safety of pregnant women in the workplace r as stated in Article 37 of the Italian Constitution Paragraph 1 to "ensure the mother and child special adequate protection".
Sources
- Legislative Decree No. 81 April 9, 2008.
- Legislative Decree No. 151 of March 26, 2001, "Consolidated text of legislative provisions on the protection and support of maternity and paternity, pursuant to Article 15 of Law No. 53 of March 8, 2000" .
- The evaluation of occupational risks, Authors :Carducci - Triassi, Edition:2013
- Manual Of Occupational Medicine, Authors:Pira - Romano - Carrer, Edition:2020
