March 2004 saw the adoption of the latest in a series of measures revising Romania's system of leave and benefits for pregnant women and new mothers. The aim is to provide better protection for women during maternity and child raising, but some of the changes benefit only women earning below average wages. The context for the various amendments is an attempt to address the country's falling birth rate.
Romania's legal framework on maternity protection has undergone many adjustments during the past four years. Law 19/2000 concerning the public pension system and other social insurance rights established the present social support system for maternity in accordance with the relevant EU legislation. Further adjustments and supplementary regulations were subsequently introduced regarding the access criteria and methods of calculation of the related allowances by several government emergency ordinances (no. 49/2001, no. 107/2001, no. 9/2003, no. 23/2003, no. 96/2003) and by Law no. 338/2002, Law no. 577/2003 and most recently Law no. 25 of March 2004. Moreover, the workplace regulations related to maternity protection have been enforced by the provisions of the new Labour Code (RO0401107F), and by collective agreements.
The recent amendments are aimed at improving the regulations, especially those concerning assistance in special cases (where there are risks to the pregnancy) and proper working conditions, and also clarify employer’s obligations in such cases and establish a new calculation method for the worker's replacement income.
The regulations in force provide access on request to four forms of leave:
- maternity leave for the period around the date of birth (126 calendar days, with at least 42 days of post-birth leave);
- 'maternal risk leave' (of 120 calendar days) (see below);
- parental leave for raising a child (of up to two years, or three years for children with disabilities); and
- leave for nursing sick children up to seven years of age (or 18 years for children with disabilities). The length of leave, which may be 14 calendar days or more, is set by the doctor depending on the child's illness.
According to Law no. 19/2000, the public system of social insurance for pregnant woman or woman choosing to leave work temporarily in order to raise children is based on the following principles:
- social solidarity, whereby the participants in the system take on mutual responsibility and have special rights in the event of the insured social risks arising;
- mandatory contributions to the system, with rights being correlated with obligations;
- contributions and insurance rights depend on the worker's pay. The contribution is set as a percentage of the monthly gross individual wage, including the complements and supplements stipulated by law or by the individual employment contract (in 2004, the social contributions in normal working conditions represent 31.5% of pay, of which 22 percentage points are paid by the employer and 9.5 percentage points by the employee). The annual contribution is limited to a maximum of the equivalent of five month's gross national average pay; and
- the allocation of the funds for the payment of allowances is effected in accordance with the law.
Having made contributions to the system, an insured person is entitled to receive a replacement income as a monthly allowance. The allowances are paid exclusively from the state social insurance budget and may be indexed from the 91st day of payment, in accordance with the law. The beneficiary of allowances may be, on request, either of the parents, if the applicant has made the minimum period of contributions required by law.
Recent changes
Government emergency ordinance no. 96/2003 and Law no. 25/2004 provide for a new form of insurance where the pregnant woman or new mother faces particular risks because of their work. 'Maternal risk' leave may be granted to employed women during pregnancy and childbirth, during the six months after the birth, and to breastfeeding mothers, in order to protect the health and safety of the mothers and children. Maternal risk leave may be granted before or after the pregnancy and post-birth leave, as recommended by a specialist doctor, unless the employer is able to ensure special working conditions or flexible working time, or if the job cannot be changed temporarily into a more flexible one. The maternal risk leave allowance is 75% of the average monthly wage received by the employee in the 10 months of contributions prior to requesting the leave, and the leave is considered as a contribution period.
In 2004, a new system has been introduced in respect of leave for raising children and looking after sick children. The two allowances are no longer dependent on the amount of the employee's previous contributions, but are fixed at 85% of the national gross average wage. The leave and the allowance may be used only after 42 days of pregnancy and post-childbirth leave.
Employer’s responsibility
The Labour Code and the national intersectoral collective agreement stipulate that the employer is responsible for ensuring the specific protection of certain categories of personnel, including pregnant and breastfeeding women. In establishing the relevant health and safety measures, the employer must consult the trade unions or the employees’ representatives and the person or committee in charge of workplace health and safety. Branch and company collective agreements adapt these provisions in accordance with the actual working conditions at these levels.
Pregnant and breastfeeding employees may ask for temporary adjustments of their working conditions in line with their condition, with employers obliged to take such measures only after being notified by the employee. The employer must maintain confidentiality. If female employees’ rights are not observed, they are entitled to bring a court case, and the burden of proof lies with the employer.
Employers must:
- assess every year workplace hazards in relation to female employees’ safety and health and inform them of the results;
- prevent women being exposed to risks that might damage their health and safety, including by transferring them to another job, without any loss of pay;
- grant leave for pre-childbirth medical examinations (a maximum of 16 hours per month) without loss of pay, and establish special working time schedules (breaks etc); and
- not force female employees to work under conditions that may harm their health, pregnancy or new-born child.
The internal regulations of companies must include provisions concerning the hygiene, health protection and safety of pregnant women and those who have recently given birth. Unless the employers can prevent risks, or change the workplace, they should comply with an employee’s request for medical risk leave in accordance with the law.
The employer may not terminate the employment relationship with a female employee during medical risk leave, pregnancy and post-childbirth leave, and leave for raising children and looking after sick children.
Commentary
The frequent recent revisions of the maternity protection legislation aim to address current demographic changes, by:
- stopping the decline in the birth rate and improving the health conditions of mothers and infants;
- improving the age structure of the potentially active population; and
- providing adequate protection at the workplace.
As shown by the 2002 population census, Romania's total fertility rate is now 1.3‰ (from 2.2‰ in 1989), while the infant death rate is still high (about 18 infant deaths per 1,000 live-births), as is the death rate at birth (about six children born dead per 1,000 births).
The present trends in Romania could cause a dramatic fall in the population (by about a quarter by 2050 horizon compared with the last census data) with significant consequences for the labour market: smaller working age contingents; an increasing average age; and an ageing structure for the active population.
Women’s presence in the labour market is still important, due to the increasing number of female school-leavers, along with their propensity for 'professional self-assertion', career making, and migration for higher wages.
By setting a fixed amount for the leave for raising children and looking after sick children, the recent legal changes disadvantage women earning more, who are tending to opt for resuming work and having their babies raised by other means - eg family members who earn less, personnel hired by mothers, public nurseries and kindergartens. On the contrary, low-skilled workers receiving low or very low wages may benefit from the social protection and are tempted to have more children. This issue was greatly commented on during 2003, and trade unions expressed much discontent, asking for allowances to be correlated with the amount of each person’s contributions. (Valentina Vasile, Institute of National Economy)