Practice receives reimbursement of maternity pay for the entire breastfeeding period

Darmstadt. If a nursing mother employed in a practice is required to be banned from working, she may still be entitled to maternity pay even after more than a year of breastfeeding. This applies to a female dentist employed in a practice at least if infection with biological agents cannot be ruled out and the child would be "unacceptably endangered" by breastfeeding, according to a ruling by the Hessian State Social Court (LSG) in Darmstadt. The employer who paid maternity pay during the ban on working is then entitled to reimbursement from the health insurance company for the entire breastfeeding period.

The specific case involved an employed dentist from the Frankfurt/Main area who became pregnant in 2018. During her pregnancy and breastfeeding period, her employer issued a ban on employment.

He paid the woman statutory maternity pay. However, the health insurance company only wanted to reimburse the practice owner for this up to the child's first birthday, but not for the breastfeeding period thereafter. The insurance company pointed out that employers are only required to grant breaks for breastfeeding during the first year. This meant that this one-year period also applies in the event of a ban on employment, and no maternity pay is to be reimbursed for periods beyond that.

Protective measures not possible

In addition, the employer provided insufficient justification for the employment ban. For example, there was a lack of adequate documentation regarding the risk assessment if the mother continued to work while breastfeeding.

The employer sued for reimbursement of the costs for the entire breastfeeding period. It argued that protective measures or a redesign of the workplace were not possible to protect mother and child from health risks.

The Higher Social Court ruled that the employer is entitled to reimbursement of maternity protection wage costs in the amount of €20,695 per month not only for the first year of breastfeeding, but also thereafter for the period from March 1, 2020, to November 30, 2020. In the case of an employment ban, the right to reimbursement of maternity protection wages does not expire after one year. The one-year period cited by the health insurance company applies only to breastfeeding periods granted by the employer and not if an employment ban applies.

The employer must conduct and document their own risk assessment for the breastfeeding period. Failure to do so constitutes an administrative offense. However, the Higher Social Court (LSG) ruled that a ban on employment may not be made dependent on this. This applies "by operation of law," since the employer could not employ the dentist elsewhere during her breastfeeding period.

There is also no reliable scientific evidence regarding the risk of infection in dental practices during the entire breastfeeding period. (fl)