Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Article 14 of the Convention. Alternative employment or other measures offered for maintaining income where continued assignment to work involving exposure is medically inadvisable. The Committee notes the references made to section 241, paragraph 2, of the German Civil Code, providing that the employer has to respect the rights and legally protected interests of the employee, and may therefore be obliged to propose alternative employment in the enterprise to an employee who, because of exposure to radiation, can no longer perform a particular type of duty. The Committee also notes that a right to continued employment is not included in the Radiation Protection and X-ray Ordinance. If there is not a suitable position available to which the worker can be reassiged, the employer may dismiss a worker subjected to exposure, taking due account of the legal notice periods. Entitlements to social insurance benefits will be determined according to the social insurance scheme as set out under the Social Code Book. The Committee notes that these entitlements seem predicated, inter alia, on the determination of a reduction of the earning capacity. The Committee also notes the information that if the incapacity is due to a work-related accident or an occupational illness, statutory accident insurance benefits also apply as a matter of principle. The Committee further notes that the Maternity Protection Act imposes general employment restrictions applicable to all pregnant and breastfeeding women regardless of their personal health status or physical condition and that women who, on the basis of the Maternity Protection Act must stop working, either partially or completely, are entitled to continued payment of their usual average wages. With reference to the foregoing and its previous comments, the Committee would, however, again like to draw the Government’s attention to the fact that as noted in paragraph 32 of the 1992 general observation under the Convention also relates to situations before any occupational disease has been declared, but after a determination that continued assignment to work involving exposure to ionizing radiations has been found to be medically inadvisable. In these cases, as paragraph 32 indicates every effort must be made to provide the workers concerned with suitable alternative employment, or to maintain their income through social security measures or otherwise. The Committee requests the Government to clarify whether the referenced statutory provisions regarding alternative employment and the right to social insurance benefits also cover situations before an illness has been declared, but after it has been determined that it is medically inadvisable for workers to continue their work due to exposure to ionizing radiation.