The Government recently issued updated guidance on protecting pregnant staff during COVID-19. Under this guidance, employers are required to undertake appropriate workplace risk assessments for pregnant employees (which includes assessing the workplace situation and whether an employee is vaccinated or unvaccinated) and remove or manage any COVID-19 risks. If the risks cannot be managed, pregnant employees should be offered appropriate alternative work or suspended on full pay. Despite these rules, Maternity Action UK has expressed concerns in their recent report ‘Unsafe and Unsupported’ that 36% of pregnant women surveyed were worried about losing their job if they took time off or asked their employer to do more to protect them from COVID-19. To ensure that your pregnant employees feel protected and supported, its important to comply with health and safety law and create an environment where employees feel comfortable raising concerns.
As you are likely aware, regular workplace risk assessments are always required under health and safety law. You are required to ensure your health and safety risk assessments take into account all risks to women of childbearing age (not limited to COVID-19 risks), regardless of whether you have been notified of a pregnancy by a staff member.
To help you make sure your health and safety processes are up to scratch, we’ve provided a refresher on how to protect staff of childbearing age, pregnant staff and new mothers in the workplace, along with a template pregnancy risk assessment.
Risk assessments: the basics
What is a risk assessment?
As an employer you are responsible for keeping your staff safe at work, which includes managing risks to their health and safety through regular risk assessments. If you have five or more employees you are required to record your risk assessments in writing. Even if you have less than five employees, it’s good practice to keep a written copy of your risk assessments anyway.
Risk assessments for pregnant staff and new mothers
Do I need to do a separate pregnancy risk assessment (or a separate risk assessment for new mothers)?
Not necessarily. You are legally required to consider the risks to female employees of childbearing age, pregnant staff and new mothers as part of your general health and safety risk assessment. You do not have to complete a separate risk assessment for these staff members, but you may find it helpful to do so, to determine if additional action needs to be taken.
Once you receive notification from a staff member that they are pregnant, you must revisit your risk assessment to check whether there are more reasonable adjustments you can make to minimise or remove risks. You must also take account of any medical issues or recommendations provided by their doctor or midwife.
Our template Pregnancy and maternity: risk assessment makes compliance easy and includes suggestions for managing the most common hazards that could affect pregnant women and new mothers. Alongside this risk assessment you should also complete our free COVID-19 risk assessment which includes the risks to pregnant women from COVID-19.
What are the most common risks that pregnant staff or new mothers may be exposed to?
The risks to pregnant staff or new mothers can vary depending on the health of your staff member and the stage of their pregnancy. Some of the most common risks include:
- Lifting or carrying heavy items;
- Standing or sitting for long periods;
- Exposure to infectious diseases, including COVID-19;
- Exposure to toxic chemicals, radioactive substances or lead;
- Work related stress;
- Long working hours and/or travel;
- Excessive noise in the workplace; and/or
- Temperature issues.
What you need to do will depend upon the working environment (eg the risks to pregnant women in offices will be lower than in factories or on building sites). However, even if you do not identify any obvious issues, it is good practice to ask your staff member whether she sees any risks and requires any reasonable adjustments.
What should I do if I identify a significant risk?
If you identify a significant risk to a pregnant staff member, her unborn child, or a new mother, you should:
- remove the risks where possible;
- if the risks cannot be removed, adjust the staff member’s hours or working conditions if reasonable to deal with the risks;
- if it is not reasonable to make adjustments or they will not deal with the risks, you must give your staff member suitable alternative work if you can, on similar terms and conditions that are not substantially less favourable to them than their existing terms of employment);
- if none of these steps are effective to protect your staff members health and safety or that or their baby, you must suspend them with full pay for as long as necessary to avoid the risk.
See Pregnancy – health and safety letter if you wish to make changes to a pregnant employee’s role and Pregnancy – suspension on health and safety grounds letter if it is necessary to suspend her. You should ensure that you reassess the situation as the member of staff’s pregnancy progresses (eg at the start of each trimester) and send updated letters where necessary.
If you use agency workers and making alterations to their working conditions or hours is either not possible or not reasonable, you must inform the agency who must then end the supply of that agency worker to you.
Reviewing your pregnancy risk assessment
Do I need to review my risk assessment throughout my staff member’s pregnancy?
Yes. You should reassess the situation as your staff member’s pregnancy progresses (eg at the start of each trimester), as your staff member’s coordination and other physical abilities can be impaired as their size increases, and/or different working conditions may pose different risks at each stage of pregnancy.
You also need to review your risk assessment if you make any significant changes to your workplace conditions or premises.
Failing to carry out a proper risk assessment in relation to the risks to new or expectant mothers and to follow up on risks identified could potentially result in a claim for pregnancy and maternity discrimination, so it is important that you take your obligations seriously.
Rest facilities for pregnant and breastfeeding women
Do I have to provide special rest facilities for pregnant or breastfeeding employees or new mothers?
Yes, you must provide suitable rest facilities for pregnant and breastfeeding mothers. Depending on what facilities you already have in place for your staff, you may not need to do anything extra. If there is somewhere that pregnant and breastfeeding employees can rest (and lie down, if necessary), that is enough.
Marion joined Sparqa Legal as a Senior Legal Editor in 2018. She previously worked as a corporate/commercial lawyer for five years at one of New Zealand’s leading law firms, Kensington Swan (now Dentons Kensington Swan), and as an in-house legal consultant for a UK tech company. Marion regularly writes for Sparqa’s blog, contributing across its commercial, IP and health and safety law content.