S.I. No. 312/1994 - European Communities (Social Welfare) Regulations, 1994.

S.I. No. 312 of 1994.

EUROPEAN COMMUNITIES (SOCIAL WELFARE) REGULATIONS, 1994.

The Minister for Social Welfare, in exercise of the powers conferred on him by section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purpose of giving effect to Council Directive No. 92/85/EEC of 19 October, 1992* insofar as it relates to entitlement to an adequate allowance for pregnant workers and workers who have recently given birth or are breastfeeding, hereby makes the following Regulations:

*O.J. No. L 348/1 28.11.1992, p 14-20.

PART I General

1 Citation

1. These Regulations may be cited as the European Communities (Social Welfare) Regulations, 1994.

2 Interpretation

2. In these Regulations, "the Principal Act" means the Social Welfare (Consolidation) Act, 1993 (No. 27 of 1993).

3 Commencement

3. These Regulations shall come into operation on the 19th day of October, 1994.

PART II Health and Safety Benefit

4 Health and safety benefit

4. The Principal Act shall have effect as if modified by the insertion after Chapter 8 of Part II of the following Chapter:

"Chapter 8A

Health and Safety Benefit

Interpretation.

41A.—In this Chapter—

'confined' and 'confinement' have the meanings respectively assigned to them by section 41;

'nightwork' means work in the period between the hours of 11 p.m. on any day and 6 a.m. on the next following day, where

( a ) the woman works more than three hours in the said period as a normal course, or

( b ) 25 per cent. of the woman's working time is performed as a normal course in such period;

'period of absence' means a period of absence referred to in section 41B (2) (b) (i) (C) or section 41B (2) (b) (ii) and any two periods of absence arising from the same pregnancy or subsequent confinement shall be treated as one period of absence;

'pregnant woman' means a woman who is pregnant and who has informed her employer of her condition;

'risk of exposure' means a risk of exposure to—

( a ) the agents, processes or working conditions specified in the Seventh Schedule,

( b ) the agents or working conditions specified in Part A of the Eighth Schedule, in the case of a pregnant woman, or

( c ) the agents or working conditions specified in Part B of the Eighth Schedule, in the case of a woman who is breastfeeding;

'week' means a period of 7 consecutive days beginning on the 1st day of the period of absence or the date of confinement, as the case may be;

'woman who has recently given birth' means at any time a woman who has been confined not more than 14 weeks previously and who has informed her employer of her condition;

'woman who is breastfeeding' means at any time a woman who, having been confined not more than 26 weeks previously, is breastfeeding and has informed her employer of her condition;

'woman who is required to perform nightwork' means a pregnant woman, a woman who has recently given birth or a woman who is breastfeeding, who is required to perform nightwork at any time either during her pregnancy or in the period of 14 weeks following her confinement and who has furnished her employer with a certificate from a registered medical practitioner certifying that it is necessary for her health and safety that she does not perform nightwork.

Entitlement to benefit.

41B.— (1) This Chapter applies to—

( a ) pregnant women,

( b ) women who have recently given birth, and

( c ) woman who are breastfeeding:

Provided that any such woman is, immediately before the 1st day of the period of absence, an employed contributor.

(2) Subject to this Act, a woman to whom this Chapter applies shall be entitled to health and safety benefit, if—

( a ) it is certified by a registered medical practitioners or otherwise to the satisfaction of the Minister that it is to be expected that she will be confined or that she has been confined, as the case may be, in a week specified in the certificate;

( b ) (i) other than in the case of a woman who is required to perform night work, it is certified by her employer that, on a date to be specified in the certificate,-

(A) there is a risk to her health an safety or a possible effect on her pregnancy or breastfeeding resulting from any activity at her employer's place of work which is likely to involve a risk of exposure;

(B) it is not technically or objectively feasible to—

(I) temporarily adjust her working conditions or working hours, or

(II) move her to suitable alternative work

or such an adjustment or move cannot reasonably be required on duly substantiated grounds, and

(C) as a consequence of the risk of exposure she is unable to continue in her employment and has commenced a period of absence from work with effect from the date specified in the certificate, or

(ii) in the case of a woman who is required to perform nightwork, it is certified by her employer that it is not technically or objectively feasible to move her to suitable alternative work other than nightwork, or such a move cannot reasonably be required on duly substantiated grounds and consequently she is unable to continue in her employment and has commenced a period of absence from work with effect from the date specified in the certificate, and

( c ) she satisfies the conditions in section 41C.

(3) For the purposes of this Chapter, a Sunday shall not in any week be treated as a day of entitlement to health and safety benefit and, accordingly, the amount payable by way of such benefit for any other day of a week shall be one-sixth of the appropriate weekly rate, subject to the total amount being paid at any time by virtue of this subsection being rounded up to the nearest 10p where it is a multiple of 5p but not also a multiple of 10p, and being rounded to the nearest 10p where it is not a multiple of 5p or 10p.

(4) Regulations may provide for requiring a woman to furnish such information as may be required by an officer of the Minister, for the purposes of determining or reviewing her claim for health and safety benefit.

Conditions for receipt.

41C. (1) The conditions for health and safety benefit are—

( a ) (i) that the claimant has qualifying contributions in respect of not less than 13 contribution weeks in the 12 months immediately preceding the expected date of confinement or the actual date of confinement, as the case may be, or

(ii) (A) that the claimant has qualifying contributions in respect of not less than 39 contribution weeks in the period beginning with her entry into insurance and ending immediately before the 1st day of the period of absence, and

(B) that the claimant has qualifying contributions or credited contributions in respect of not less than 39 contribution weeks in the last complete contribution year before the beginning of the benefit year in which the 1st day of the period of absence occurs,

and

( b ) that the claimant has prescribed reckonable weekly earnings in excess of a prescribed amount in a prescribed period.

(2) The requirement in subsection (1) (a) shall not apply in the case of a claim for health and safety benefit made by a woman who has recently given birth or a woman who is breastfeeding where such woman was in receipt of maternity benefit under section 37 in any of the 22 weeks prior to the 1st day of the period of absence in respect of which the claim for health and safety benefit is made.

(3) Subject to subsection (4), regulations may provide for entitling to health and safety benefit women who would be entitled thereto but for the fact that the condition in subsection (1) (b) is not satisfied.

(4) Regulations for the purposes of subsection (3) shall provide that benefit payable by virtue thereof shall be payable at a rate less than that specified in the Second Schedule, and the rate specified by the regulations may vary with the extent to which the condition set out in subsection (1) (b) is satisfied.

Duration of payment.

41D. (1) Subject to this Chapter, health and safety benefit shall be payable for the period commencing on the 1st day of the 4th week of the period of absence and ending on—

( a ) the day prior to the 1st day of the period for which maternity benefit under section 37 is payable, in the case of a pregnant woman,

( b ) the last day of the 14th week following the date on which she was confined, in the case of a woman who has recently given birth, and

( c ) the last day of the 26th week following the date on which she was confined, in the case of a woman who is breastfeeding:

Provided that health and safety benefit shall not be payable for any day in respect of which maternity benefit under section 37 is payable.

(2) If the woman who is entitled to health and safety benefit dies, the benefit shall not be payable for any subsequent day.

(3) Where the woman is employed under a contract for a fixed term and that term expires during the period for which health and safety benefit would otherwise be payable, the benefit shall cease to be payable from the day on which the term expires.

(4) Health and safety benefit shall cease to be payable if—

( a ) the woman's condition is no longer such that—

(i) she is unable to continue in her employment as a consequence of a risk of exposure, or

(ii) it is necessary for her health and safety that she does not perform nightwork,

( b ) the woman, being a woman who is breastfeeding, ceases breastfeeding, or

( c ) the employer notifies the woman that she can return to work as the risk of exposure no longer exists or that suitable alternative work is available for her.

Rates of benefit.

41E.—Subject to this Act, the weekly rate of health and safety benefit shall be as set out in column (2) of Part I of the Second Schedule.

Increases for adult and child dependants.

41F.— (1) The weekly rate of health and safety benefit shall be increased by the amount set out in column (3) of Part I of the Second Schedule for any period during which the beneficiary has an adult dependant, subject to the restriction that a beneficiary shall not be entitled for the same period to an increase of benefit under this subsection in respect of more than one person.

(2) The weekly rate of health and safety benefit shall be increased by the appropriate amount set out in column (4) of Part I of the Second Schedule in respect of each qualified child who normally resides with the beneficiary.

(3) Any increase of health and safety benefit payable pursuant to subsection (2) in respect of a qualified child who normally resides with a beneficiary and with the spouse of a beneficiary shall be payable at the rate of one-half of the appropriate amount in any case where the spouse of the beneficiary is not an adult dependant, and subsection (2) shall be construed and have effect accordingly.

Disqualifications.

41G.—A woman shall be disqualified for receiving health and safety benefit during any period in which she engages in any occupation other than domestic activities in her own household.".

5 Description of benefit

5. Section 30 (1) (as amended by section 13 of the Social Welfare Act, 1994 (No. 4 of 1994)) of the Principal Act shall have effect as if modified by the insertion after paragraph (a) of the following paragraph:

"( aa ) health and safety benefit,".

6 Amendment of Second Schedule.

6. Part I of the Second Schedule to the Principal Act is hereby modified by the insertion after the rates of benefit contained at reference 1 of the following rates:

"1A. Health and Safety Benefit ... 61.00 36.60 13.20 - - -.".

7 Insertion of Schedules.

7. The Principal Act shall have effect as if modified by the insertion after the Sixth Schedule of the following Schedules:—

"SEVENTH SCHEDULE

List of Agents, Processes and Working Conditions

A. Agents

1. Physical Agents where these are regarded as agents causing foetal lesions likely to disrupt placental attachment (or both), and in particular:

( a ) shocks, vibration or movement,

( b ) handling of loads entailing risks, particularly of a dorsolumbar nature,

( c ) noise,

( d ) ionising radiation as referred to in Directive 80/836/EURATOM,*

*O.J. No. L246, 17.9.1980, p1.

( e ) non-ionising radiation,

( f ) extremes of cold or heat,

( g ) movements and postures, travelling, either inside or outside the place of work, mental and physical fatigue and other physical burdens connected with the activity of the employee.

2. Biological Agents

Biological agents of risk groups 2, 3 and 4 within the meaning of Regulation 2(1) of the Safety, Health and Welfare at Work (Biological Agents) Regulations, 1994 ( S.I. No. 146 of 1994 ) insofar as it is known that these agents or the therapeutic measures necessitated by such agents endanger the health of pregnant employees and the unborn child and excluding those referred to in the Eighth Schedule.

3. Chemical Agents

The following chemical agents insofar as it is known that they endanger the health of pregnant employees and the unborn child and excluding those referred to in the Eighth Schedule:

( a ) substances labelled R40, R45, R46, R61, R63 and R64 under the European Communities (Classification, Packaging, Labelling and Notification of Dangerous Substances) Regulations, 1994 ( S.I. No. 77 of 1994 ) excluding those referred to in the Eighth Schedule,

( b ) chemical agents listed in the First Schedule to the Safety, Health and Welfare at Work (Carcinogens) Regulations, 1993, ( S.I. No. 80 of 1993 ),

( 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 the First Schedule to the Safety, Health and Welfare at Work (Carcinogens) Regulations, 1993.

C. Working Conditions

Underground mining work.

EIGHTH SCHEDULE

List of Agents and Working Conditions

PART A: PREGNANT EMPLOYEES

1. Agents

( a ) Physical Agents

Work in hyberbaric atmosphere, such as in pressurised enclosures and underwater diving.

( b ) Biological Agents

The following biological agents:

— Toxoplasma

— Rubella virus,

unless the pregnant employees are proved to be adequately protected against such agents by immunisation.

( c ) Chemical Agents

Lead and lead derivatives insofar as these agents are capable of being absorbed by the human organism.

2. Working Conditions

Underground mining work.

PART B: EMPLOYEES WHO ARE BREASTFEEDING

1. Agents

Chemical Agents

Lead and lead derivatives insofar as these agents are capable of being absorbed by the human organism.

2. Working Conditions

Underground mining work.".

PART III

Maternity Benefit.

Entitlement to benefit

8. Section 37 of the Principal Act shall have effect as if modified by the insertion after subsection (1) of the following subsection:

"(1A) The requirement in subsection (1) (c) shall not apply in the case of a claim for maternity benefit made by a woman who was in receipt of health and safety benefit under section 41B at any time during the pregnancy as a result of which it is expected that she will be confined.".

GIVEN under the Official Seal of the Minister for Social Welfare, this 15th day of October, 1994.

MICHAEL WOODS,

Minister for Social Welfare.

EXPLANATORY NOTE.

Council Directive 92/85/EEC of 19 October, 1992 deals with the introduction of measures to encourage improvements in the safety and health at work of pregnant employees, employees who have recently given birth and employees who are breastfeeding. These Regulations provide for the introduction of a new Health and Safety Benefit scheme (which will operate on an interim basis) for employees covered by the Directive who are exposed to a specified risk to their health and safety, pregnancy or breastfeeding, or who are required to do nightwork and whose employers' cannot assign them to suitable alternative work.

Health and Safety Benefit is a social insurance payment available to women, being employed contributors, who:

— are pregnant, have recently given birth (up to 14 weeks after giving birth, including a still birth from 24 weeks onwards of the pregnancy) or are breastfeeding (up to 26 weeks after giving birth),

— face a specified risk to their health and safety, pregnancy or breastfeeding and whose employers cannot either

remove the risk to move them to suitable alternative work, or are required to do nightwork, i.e. at least 3 hours (or 25% of their normal) work during the hours of 11 p.m. on one day and 6 a.m. on the following day, either during their pregnancy or in the 14 week period after giving birth, where their registered medical practitioner has certified that it is necessary for their health and safety that they do not do nightwork and their employer cannot move them to alternative day work, and

— as a consequence, are unable to continue in their employment and have commenced a period of absence from work.

To qualify a woman must provide the necessary medical and employer's certificates and satisfy the contribution conditions, i.e. have:

— at least 13 paid contributions in the 12 months before the expected or actual date of her baby's birth, or

— at least 39 paid contributions since first becoming insured and at least 39 paid or credited contributions in the governing contribution year, i.e., the last complete tax year before the benefit year in which the 1st day of the period of absence from work, and

— have average earnings of not less than a prescribed amount.

Pregnant women or women who are breastfeeding are automatically deemed to be exposed to a risk to their health and safety if they are:

— working in underground mines,

— exposed to lead or lead derivatives which can be absorbed by the human body, or

— working in hyberbaric atmospheres. e.g. underwater diving, or exposed (without immunisation) to toxoplasma or the rubella virus, in the case of pregnant women.

Pregnant women, women who have recently given birth and women who are breastfeeding may be exposed to a risk to their health and safety or a possible effect on their pregnancy or breastfeeding if they are exposed to:

— a physical agent which is regarded as causing foetal lesions or is likely to disrupt placental attachment,

— certain biological or chemical agents which are known to endanger the health of pregnant employees and the unborn child, or

— certain industrial processes involving carcinogens.

Health and Safety Benefit is payable to a woman from the 1st day of the 4th week of her absence from work. The benefit continues to be payable, provided the woman continues to face the risk and her employer cannot assign her to alternative duties, until she becomes entitled to Maternity Benefit or for 14 weeks after the baby's birth (26 weeks in the case of a breastfeeding woman) as the case may be. Health and Safety Benefit is not payable for any day on which a woman is entitled to Maternity Benefit and payment ceases if the woman's employment, being a fixed contract, expires.

The weekly personal rate of benefit is £61, increased by £36.60 where the claimant has an adult dependant and by £13.20 in respect of each qualified child.