L.S. 452.138 Regolamenti dwar Leave għall-Korriment tat-Tqala

(1)The title of these regulations is the Miscarriage Leave Regulations. Citation, scope and applicability .

(2)The purpose of these regulations is to establish the requirements to grant a period of paid leave to workers in the context of a miscarriage, whether such miscarriage occurs in Malta or abroad.

(3)These regulations shall apply to all workers, regardless of gender or sexual orientation, who have a contract of employment or employment relationship as defined in the Act, in collective agreements or practice in force. 2. requires: In these regulations, unless the context otherwise Interpretation. "Act" means the Employment and Industrial Relations Cap. 452. "Department" shall have the same meaning as assigned to it in the Social Security Act; Cap. 318. Act; "miscarriage" means: (

1. a)the spontaneous loss of pregnancy due to natural causes or medical complications; or (
2. b)the termination of pregnancy resulting from a medical intervention carried out in accordance with article 243B of the Criminal Code, which loss or termination occurs before the twenty second (22nd) week of pregnancy; "other prospective parent" means any person, regardless of gender or sexual orientation, who is identified as such in accordance with these regulations; "pro rata" shall have the same meaning as assigned to it in article 2 of by the Act: Provided that: (
3. a)where the worker is in part-time employment on a variable time schedule, the working hours per week shall be calculated as the average number    Cap. 9. 2 [ S.L. 452.138] MISCARRIAGE LEAVE REGULATIONS of hours of work per week spread over successive thirteen

(13)week periods commencing on the first (1st) of January of each calendar year; and (b) where the employee has not been in parttime employment for a period of thirteen

(13)weeks, the average number of hours of work per week shall be calculated over the number of weeks in employment; "worker" shall have the same meaning as assigned to it by the Act. Entitlement to miscarriage leave. 3.

(1)Every worker is entitled to seven

(7)working days of miscarriage leave without loss of wages, which shall be availed of immediately after the occurrence of a miscarriage.

(2)The entitlement referred to in sub-regulation

(1)shall apply on an individual basis to both the worker who suffers the miscarriage and the other prospective parent and shall be granted irrespective of gender, sexual orientation, civil or family status.

(3)The employer shall have the right to file an application with the Department for a refund of the payment relating to miscarriage leave within three

(3)months from when the miscarriage leave would have been availed of: Provided that if the application is not submitted in the stipulated time, the employer forfeits the right from submitting the application with the Department for reimbursement.

(4)The right to miscarriage leave shall apply to every worker, whether employed on a full-time or part-time basis, and whether engaged on an indefinite or fixed-term contract: Provided that workers employed on a part-time basis shall be entitled to miscarriage leave on a pro rata basis.

(5)The right to miscarriage leave shall not be subject to a period of work qualification or to a length of service qualification.

(6)Miscarriage leave is to be granted independently and irrespectively of any other kinds of leave granted by the Act or by any legislation made thereunder.

(7)In the case that the worker had pre-approved vacation leave which coincides with the same period during which the worker is eligible for miscarriage leave, the worker shall have the option to either retain such pre-approved vacation leave or utilise the miscarriage leave: Provided that if the worker opts to utilize the pre-approved MISCARRIAGE LEAVE REGULATIONS [ S.L. 452.138] 3 vacation leave, the worker forfeits the right to make use of the miscarriage leave, since the said miscarriage leave should be taken immediately following the miscarriage. 4.

(1)Workers who avail themselves of miscarriage leave shall, by not later than two

(2)working days from their return to work, provide to the employer a medical certificate issued by a registered obstetrician or gynaecologist.

(2)Medical certificate and declaration. The medical certificate referred to in sub-regulation

(1)shall: (

1. a)indicate the name, the surname and the identification document number of the worker who suffered the miscarriage; (
2. b)specify the date on which the miscarriage occurred; and (
3. c)confirm that the miscarriage took place prior to the twenty second (22nd) week of pregnancy.

(3)In order that the other prospective parent shall be entitled to miscarriage leave, a declaration shall be made by the worker who suffered the miscarriage wherein the worker shall indicate the name, the surname and the identification document number of the other prospective parent. Such declaration shall be signed by the worker who suffered the miscarriage and counter-signed by the other prospective parent.

(4)The worker who suffered the miscarriage and the other prospective parent shall not be required by the employer to submit any additional documentation, apart from the medical certificate referred to in sub-regulation

(2)and the declaration referred to in subregulation

(3).

(5)The entitlement to miscarriage leave shall not be conditional upon any disclosure of the pregnancy to the employer prior to the occurrence of the miscarriage. 5.

(1)Any personal data obtained by the employer in connection with miscarriage leave, including but not limited to the medical certificate and the declaration referred to in regulation 4, shall be processed in accordance with the principles of security and confidentiality of the personal data, in a manner to ensure the prevention of unauthorised access to, or use of personal data. Processing of personal data by the employer. 4 [ S.L. 452.138]            Cap. 586. MISCARRIAGE LEAVE REGULATIONS

(2)Without prejudice to sub-regulation

(1), the employer shall ensure that such personal data is processed solely for the purpose of administering the miscarriage leave and in accordance with the provisions of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (the General Data Protection Regulation) and the Data Protection Act, including the regulations made thereunder.

(3)Access to such personal data shall be strictly limited to persons who, by reason of their duties, are directly involved in the administration of miscarriage leave and the employer shall ensure that such persons are bound by an obligation of confidentiality. Register. 6.

(1)A register shall be established and maintained with strict confidentiality and subject to appropriate technical and organisational measures by the Department, which Department shall be the controller of data. Such register shall identify the workers who would have availed themselves of miscarriage leave and the employer who would have submitted an application for reimbursement in accordance with these regulations. The Director General of the Department of Industrial and Employment Relations and any official acting on behalf of the said controller shall have access to such register where duly registered.

(2)Any personal data obtained by the Department for the purpose of these regulations shall be processed in accordance with the provisions of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (the General Data Protection Regulation) and the Data Protection Act, including the regulations made thereunder. Employment rights. 7.

(1)Rights that have been acquired or that are in the process of being acquired by workers on the date when miscarriage leave commences shall be safeguarded for the duration of such leave. At the end of such leave, all rights, including any changes arising from the law, collective agreements or practice, shall apply.

(2)At the end of the miscarriage leave, workers shall be entitled to return to their jobs and to benefit from any improvement in working conditions to which they would have been entitled had they not taken the miscarriage leave. Discrimination.

1. Discrimination against workers on the ground that they have availed themselves of miscarriage leave shall be prohibited. MISCARRIAGE LEAVE REGULATIONS [ S.L. 452.138] 5
2. Without prejudice to article 28 of the Act, no worker or any worker being the employees’ representative, submitting a complaint to the employer or initiating legal proceedings against the employer for the purpose of enforcing compliance with the requirements established in these regulations, shall suffer from any adverse treatment or consequences. Protection against adverse treatment or consequences. 10.

(1)Any dismissal or preparations for the dismissal of workers, even during the probationary period, on the grounds that they have applied for and, or availed themselves of miscarriage leave shall be unlawful. Protection from dismissal and burden of proof.

(2)Workers who consider that they have been dismissed on the grounds that they have applied for and, or have taken miscarriage leave may request the employer to provide duly substantiated reasons for their dismissal. Such reasons shall be provided by the employer in writing, within fifteen

(15)calendar days from such request.

(3)Where a worker establishes before a competent authority, facts capable of giving rise to a presumption that he has been dismissed on the grounds of having applied for and, or availed himself of miscarriage leave, it shall be the responsibility of the employer to prove that the dismissal was based on other grounds.

1. If a dispute arises between an employer and an employee regarding the entitlement of miscarriage leave or any other related matter, then either the employer or the employee may refer the matter to the Director General of the Department of Industrial Relations and Employment who shall act as a mediator between the parties. Any mediation conducted in accordance with this regulation is without prejudice to any other remedy in terms of law. Dispute resolution.
2. Miscarriage leave shall also be applicable to service with the Government. Applicability to Government.
3. Any person who contravenes or fails to comply with any provision of these regulations shall, without prejudice to any other right or remedy under any other law, be guilty of an offence against the Act and shall on conviction be liable to the punishments established by article 45 of the Act. Offences and punishments.