Please note: trigger warning. This message is about the loss of a pregnancy/child and can provoke strong emotions and memories.
What is a miscarriage or stillbirth?
According to WHO guidelines, a miscarriage occurs if you lose a pregnancy within the first 20 weeks. If you lose a child during pregnancy after these first 20 weeks or shortly after birth, it is referred to as a stillbirth. In this article, we also qualify termination of a pregnancy after prenatal screening as a miscarriage or stillbirth.
This very sad topic is probably also a known or unknown topic in your organization. This evidently follows from the following figures:
- 1 in 10 pregnancies end in miscarriage. About 20,000 women have a miscarriage every year.
- 1,300 – 1,500 pregnancies in the Netherlands end in stillbirth every year.
- Approximately 10,000 pregnancies are terminated after prenatal screening or diagnostics (ultrasounds, NIPT, amniocentesis, nuchal translucency measurement, etc.) every year.
It needs no further explanation that it is extremely intense and sad when someone experiences this. But what are the rights of an employee with an employment contract in such a case? And how can you deal with this properly as an employer?
The employment law framework:
Leave rights of a pregnant woman differ partly from those of a partner who loses a child. The difference in rights is made because the pregnant woman not only has to bear with the mental pain, but also with the physical impact.
The pregnant woman
- Although there is now a wide range of leave types for employees who become parents, there is no specific statutory leave scheme in the event of a miscarriage (<20 weeks).
- However, depending on the physical and mental circumstances, there may be incapacity for work. A miscarriage sometimes leads to a necessary medical intervention in the hospital. The pregnant employee will in any case be incapacitated for work on that day and the days of recovery afterwards. The employee does not have to say anything to the employer about the nature of the sick leave. However, as an employer, you can (always) ask whether there is a safety net provision situation. Under Dutch law there is a so-called “safety net provision” in case an employee is unable to work due to or as a result of pregnancy. The employee must then answer this honestly. As an employer, you can then apply for a Sickness Benefits Act (Ziektewet) benefit if you report the employee sick.
- Does the employee lose the pregnancy after 24 weeks? Then the employee is entitled to statutory leave. In that case, the pregnant woman is entitled to 16 weeks of maternity leave. Any period during which the employee was already on maternity leave will be deducted from this period. If the employee is still unable to work (completely) after these 16 weeks, she is (partially) incapacitated for work and reported sick.
The partner
- For the pregnant woman's partner, there may be emergency leave (1 to 2 days of paid leave) on the day of the loss and/or hospital intervention. After that, the partner can claim short-term care leave. This is the case if the partner needs necessary care, or the employee already has an older child who needs to be given care. The length of this short-term care leave is a maximum of 2 weeks (pro rata for part-time employment) per 12 months of employment. During this leave, the employee will continue to be paid 70% of the maximum daily wage under the Work and Care Act (WAZO). Many employers have a supplementary arrangement for this on the basis of the collective labor agreement or the employment agreement, whereby, for example, up to 70% (or more) of the employee's current salary is continued to be paid. Some collective labor agreements or employee handbooks also contain an additional special leave arrangement. Special leave is not based on a statutory regulation.
- Of course, due to all the emotions and mental strain, the partner can also be incapacitated for work. This sick report does not then fall under a safety net provision of the Sickness Benefits Act (Ziektewet).
- If the employee, being the partner of the pregnant woman, loses the pregnancy after 24 weeks, the partner is entitled to the same leave entitlements as would have applied to the birth of a live child. This means that the employee is entitled to partner leave and additional partner leave.
Good employer practices
If you have an open culture in which employees feel safe and heard to express themselves during sad and difficult events in their private lives, then you as an employer have the opportunity to respond empathetically and appropriately. For example, by paying attention to the loss immediately after the loss and later – also some time after the loss – asking about the employee's needs and taking this into account (as far as possible and reasonable).
Bereavement leave
There have been many calls for the introduction of statutory bereavement leave for these types of situations for some time now. Because although the employee has the option to report sick, this does not feel like the right way for many employees. If you report sick, you may be called by the company doctor and you must cooperate with your reintegration. If you lose a pregnancy, you are (often) (temporarily) unable to work, but you want to be able to reflect on the loss in peace and quiet. This is a different process than in the case of disability. The introduction of bereavement leave could provide this space and recognition. This does not alter the fact that an employee may (in addition) be incapacitated for work. However, not every employee needs (long-term) leave when they lose a child. Grief is very personal.
The fact that there is no statutory bereavement leave in the Netherlands does of course not mean that you as an organization cannot introduce a scheme for this yourself. Hopefully you will not have to rely on your scheme, but it can't hurt to think carefully about how you want to deal with this within your organization.
Note: the discussion on the introduction of bereavement leave is broader than the loss of a child. In this blog we have zoomed in on this specific topic.
