A Pregnant Pause

One of the more common areas of Romanian law which a Romanian law firm is asked about is in relation to Romanian employment matters, and particularly concerning the temporary suspension of Romanian employment contracts. Perhaps the most common question of all relates to pregnant women and their position in the Romanian company both before the birth and after the birth of a child.

Romania has like all countries in the EU adopted and incorporated a number of EU directives covering the security of employment including this area (EU Council Directive 92/85/EEC 19 October 1992).

The directive and its incorporation covers only employees in Romania under a Romanian labor contract. If a woman is working under a contract of services the terms (including maternity entitlement) will not be covered by the Romanian Labor Code or the Directive, but by the agreement of the parties.

Further, under the Romanian anti discriminatory law (Romanian Government Emergency Ordinance no. 96/2003) it is forbidden when hiring a female employee to ask if they intend to have a family as this is considered discriminatory.

The Romanian Labor Code provides that the dismissal of pregnant employees is prohibited during their pregnancy. The employer needs to be aware of the pregnancy at the time any notice of termination is issued terminating a woman’s employment. If a notice to terminate the employment is issued and subsequently during any notice period the employee advises the employer that she is pregnant this does not suspend the operation of the notice.

A pregnant employee can be dismissed after she has advised the employer she is pregnant if the notice of termination is issued as a result of reorganization and insolvency or dissolution of the employer. This notice can only be given if a court has ordered the reorganization or liquidation of the company. The same rules are promulgated by the Romanian Law no. 202/2002 on Equal Opportunity and Treatment between men and women.

Similarly, in accordance with the provisions of the Romanian Government Emergency Ordinance no. 96/2003 on maternity protection in the workplace, it is prohibited for the employer to terminate the employment relationship if the employee is pregnant and the employer is aware of that fact. The employee must have notified in writing the employer of the pregnancy and must attach a medical document.

Once a Romanian woman has given notice of the fact that she is pregnant it is the employer’s responsibility to ensure that she works in an environment condusive to her position and if necessary she will have to be employed in less strenuous work, such as clerical duties.

A pregnant woman is allowed maternity leave in the last two months before the estimated date of birth of the child. She is to be paid the full amount of her salary during this period.

After the birth of a child a woman can take up to twenty four months maternity leave and the employer is obliged to keep open her position in the company during that period, although the post can be filled with a temporary employee. She is also entitled to receive a salary at the rate of eighty five per cent of her last salary.

The minimum amount payable during the first twelve months is six hundred RON and a maximum amount of three thousand four hundred RON. In the second year the same formulae applies except the maximum amount is one thousand two hundred RON. These amounts have to be paid by the employer who can reclaim this amount from the Romanian State.

At the expiry of the period of twenty four months the employee must advise the employer if she wishes to return to work. If no such notice is given then at the end of the twenty four month period the employees cannot return to work.

In the work force in Romania there are a large number of women and their role and position that they hold has to be considered by many employees. Whilst many women may not wish to return to work after the birth of a child they may be forced to return to work by reason of economic necessity.

All these factors need to be considered by an employee when deciding upon the mix of employees in their company as the ensuing financial impact for the employer has to be borne while at the same time ensuring that the company runs in a profitable manner.

:: The source: Romania Law Blog

Nicholas Hammond
Guest writer. Senior Partner of BWSP Hammond Bogaru & Associate