STATUTORY INSTRUMENTS.

S.I. No. 218 of 2000.

SAFETY, HEALTH AND WELFARE AT WORK (PREGNANT EMPLOYEES ETC.) REGULATIONS, 2000.

S.I. No. 218 of 2000

SAFETY, HEALTH AND WELFARE AT WORK (PREGNANT EMPLOYEES ETC.) REGULATIONS, 2000.

I, TOM KITT, Minister of State at the Department of Enterprise, Trade and Employment, in exercise of the powers conferred on me by section 28 of the Safety, Health and Welfare at Work Act, 1989 ( No. 7 of 1989 ), and the Labour (Transfer of Departmental Administration and Ministerial Functions) Order, 1993 ( S.I. No. 18 of 1993 ), as adapted by the Enterprise and Employment (Alteration of Name of Department and Title of Minister) Order, 1997 ( S.I. No. 305 of 1997 ) and the Enterprise, Trade and Employment (Delegation of Ministerial Functions) (No. 2) Order, 1997 ( S.I. No. 330 of 1997 ), and after consultation with the National Authority for Occupational Safety and Health, and for the purpose of giving effect to Council Directive 92/85/EEC ¹ hereby make the following regulations:

Citation.

1. These Regulations may be cited as the Safety, Health and Welfare at Work (Pregnant Employees etc.) Regulations, 2000.

Interpretation.

2. (1) In these Regulations:

“the Directive” means 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;

“agent, process or working condition” includes an agent, process or working condition specified in Schedule 1;

“approved” means approved in writing for the time being by the Authority or conforming with a specification in writing by the Authority;

“employee” means a pregnant employee, an employee who is breastfeeding or an employee who has recently given birth;

“employee who is breastfeeding” means an employee who, having given birth not more than twenty-six weeks previously, is breastfeeding;

“employee who has recently given birth” means an employee who gave birth not more than fourteen weeks preceding a material date;

“employer” means any employer of an employee;

“pregnant employee” means an employee who is pregnant;

“registered medical practitioner” means a person whose name is entered in the General Register of Medical Practitioners established under the Medical Practitioners Act, 1978 (No. 4 of 1978) ;

“the Principal Regulations” means the Safety, Health and Welfare at Work (General Application) Regulations, 1993 ( S.I. No. 44 of 1993 ).

(2) A word or expression used in these Regulations which is also used in the Directive has, unless the context otherwise requires, the same meaning in these Regulations as it has in the Directive.

(3) In these Regulations a reference to a paragraph is to a paragraph in the Regulations in which the reference occurs, unless it is indicated that reference to some other Regulation is intended and a reference to a Regulation or a Schedule is to a Regulation of, or a Schedule to, these Regulations, unless it is indicated that reference to some other Regulation or Schedule is intended.

(4) Regulation 4 (2) and Part II of the Principal Regulations shall apply to these Regulations.

(5) The provisions of Regulation 3 of the Principal Regulations shall not apply to the application of the provisions of these Regulations.

Application.

3. The provisions of these Regulations shall apply to an employee subject to her notifying her employer of her condition as soon as is practicable after it occurs and, at the time of the notification, giving to her employer or producing for her employer's inspection a medical or other appropriate certificate confirming her condition.

General Duties of Employer.

4. Without prejudice to the provisions of Regulation 10 of the Principal Regulations, it shall be the duty of every employer--

(a) to  assess any risk to the safety or health of employees, and any possible effect on the pregnancy of, or breastfeeding by, employees, resulting from any activity at that employer's place of work likely to involve a risk of exposure to any agent, process or working condition and, for that purpose, to determine the nature, degree and duration of any employee's exposure to any agent, process or working condition and to take the preventive and protective measures necessary to ensure the safety and health of such employees and to avoid any possible effect on such pregnancy or breastfeeding,

(b) without prejudice to paragraph (a) and the provisions of the Safety, Health and Welfare at Work (Chemical Agents) Regulations, 1994 ( S.I. No. 445 of 1994 ), and to the occupational exposure limits laid down in any approved code of practice referred to in the said Regulations to--

(i) assess any risk to safety or health likely to arise from exposure of a pregnant employee to an agent or working condition listed in Part A of Schedule 2, resulting from any activity at that employer's place of work, and to ensure that such employee is not required to perform duties for which the assessment reveals such risk.

 (ii) assess any risk to safety or health likely to arise from exposure of an employee who is breastfeeding to an agent or working condition listed in Part B of Schedule 2, resulting from any activity at that employer's place of work and to ensure that such employee is not required to perform duties for which the assessment reveals such risk.

(c) where the risk assessment carried out under paragraphs (a) and (b) reveals a risk to an employee's safety or health, or any possible effect on the pregnancy or breastfeeding of an employee, and it is not practicable to ensure the safety or health of such employee through protective or preventive measures, to adjust temporarily the working conditions or the working hours (or both) of the employee concerned so that exposure to such risk is avoided.

(d) in cases in which the adjustment of working conditions or working hours (or both), referred to in paragraph (c), is not technically or objectively feasible (or both), or cannot reasonably be required on duly substantiated grounds, to take the measures necessary to provide the employee concerned with other work, which does not present a risk to the safety or health of, or any possible effect on the pregnancy or breastfeeding by, such employee.

Night Work.

5. (1) If a registered medical practitioner certifies that it is necessary for the safety or health of an employee that she should not be required to perform night work during pregnancy or for 14 weeks following childbirth the employer shall not oblige her to perform night work during that period.

(2) In a case to which paragraph (1) relates, the employer shall transfer the employee to daytime work or, where such a transfer is not technically or objectively feasible on duly substantiated grounds or both, grant the employee leave or extend the period of maternity leave.

(3) In this Regulation “night work” 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 employee works at least three hours in the said period as a normal course, or

(b) at  least 25 per cent of the employee's monthly working time is performed in the said period.

Information.

6. It shall be the duty of every employer, without prejudice to the provisions of Regulation 11 of the Principal Regulations, to take appropriate steps to ensure that employees or their safety representative (or both) are provided with information on

(a) the results of the assessment referred to in Regulation 4, and

(b) the measures to be taken concerning employees' safety and health pursuant to these Regulations.

Revocation.

7. The Safety, Health and Welfare at Work (Pregnant Employees etc.) Regulations, 1994 ( S.I. No. 446 of 1994 ) are revoked.

SCHEDULE 1

Non-Exhaustive List of Agents, Processes and Working Conditions

Regulation 4

Part A

Agents

1. Physical Agents

Physical agents where these are regarded as agents causing foetal lesions or likely to disturb 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) ionizing radiation,

(e) non-ionizing radiation,

(f) extremes of cold or heat,

(g) movements and postures, travelling, either inside or outside the place of work, mental or 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 ), in so far 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 but excluding those referred to in Schedule 2.

3. Chemical Agents

The following chemical agents insofar as it is known that they endanger the health of pregnant employees and the unborn child but excluding those referred to in Schedule 2:

(a) substance labelled R40, R45, R61, R63 and R64 under the European Communities (Classifications, Packaging, Labelling and Notification of Dangerous Substances) Regulations, 1994 ( S.I. No. 77 of 1994 ),

(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.

Part B

Processes

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

Part C

Working Conditions

Underground mining work.

Schedule 2

List of Agents, Processes and Working Conditions

Regulation 4

Part A

Pregnant Employees

1. Agents

(a) Physical Agents

Work in hyperbaric 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 uman 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.

EXPLANATORY NOTE.

(This note is not part of the Instrument and does not purport to be a legal interpretation).

These Regulations implement the occupational safety and health provisions of Council Directive 92/85/EEC of 19th 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 (10th individual directive within the meaning of Article 16 (1) of Directive 89/391/EEC).

These Regulations revoke and replace the Safety, Health and Welfare at Work (Pregnant Employees etc.) Regulations, 1994 ( S.I. No. 446 of 1994 ). In order to ensure the full transposition of Council Directive 92/85/EEC, the list of agents, processes and working conditions specified in the First Schedule to the Regulations is clarified as a non-exhaustive list.

The new Regulations will have no direct impact on the practical obligations that currently arise at workplaces under the 1994 Regulations.

¹ OJ No. L 348/1, p.14-20.,