When a ban on employment while breastfeeding is discriminatory

Surprisingly, maternity leave is intended to protect, not exclude. Nevertheless, a kind of automatism has long been established in company practice surrounding breastfeeding: breastfeeding is considered a risk and sometimes even a reason for a ban on employment. This idea was often broadly expanded, especially in sensitive areas such as healthcare. Modern risk assessments and occupational health assessments are increasingly coming to the conclusion that a ban on employment is not a sure-fire success, but must remain the exception – at least when risks can be controlled through protective measures or organizational adjustments.

Signal from Karlsruhe

This line will receive a boost at the end of September 2025 from a decision by the Karlsruhe Labor Court. The court made it clear that after the end of the statutory maternity leave period, there is no blanket ban on employment during breastfeeding. The employer’s duty of care remains, but does not replace the necessary individual case assessment. To sum it up in a tabloid-friendly way: breastfeeding alone doesn’t stop you from working. The legal core lies less in the result than in the order. Before an employment ban is issued, risks must be specifically identified, activities must be redesigned if necessary and protective measures must be examined. The ban is not the convenient standard solution, but the last resort when an irresponsible risk cannot be ruled out otherwise.

Lesson for your wallet

Two frequently cited comparative cases show how tangible this trade-off is. The Freiburg Labor Court already dealt with the case of a breastfeeding oral surgeon in 2021. A comprehensive employment ban was not accepted there; Only working with amalgam or mercury was problematic, but not the entire dental work. Other tasks were considered permissible if appropriate protective measures were taken.

The case of a breastfeeding orchestra musician before the Munich Labor Court is even more vivid. Evening shifts, loudness and orchestra digging were not enough for the judges to automatically assume an irresponsible risk. Here too, the decisive factor was not the industry, but the specific activity and the question of whether risks could be controlled. The case law of the Federal Labor Court (BAG) shows that it is not just about care, but also about money. In a ruling dated September 20, 2023, the BAG clarified that maternity protection wages are only owed if a ban on employment under maternity protection law alone is the reason why the employee does not work. Anyone who rashly bans or documents unclearly not only risks labor disputes, but also financial consequences.

What is intended as a protective instrument sometimes turns into a blanket, temporary exclusion in practice – well-intentioned, but poorly done. The current line of the courts reminds us that maternity protection means consideration and is not automatic. Or to put it another way: sometimes less prohibition protects more.

This article first appeared in our March/April 2026 issue.

Sven Frost is responsible for HR tech, which includes the areas of digitalization, HR software, time and access, SAP and outsourcing. He also writes about recruiting and employer branding. He continues to be responsible for the editorial planning of various special human resources publications.