Council Directive 92/85/EEC of 19 October 1992 on the implementation of measures to promote the improvement of safety and health at work of pregnant workers, who have given birth or in a period of (a) the Commission has decided to adopt a series of measures aimed at protecting this group of workers who are particularly sensitive to certain risks. In our country, the incorporation of the directive was carried out by Law 31/1995 of 8 November of Prevention of Occupational Risks, which in its article 26, subsequently amended by Law 39/1999 of 5 November, to promote the reconciliation of the family and work life of the working people and, recently, by the Organic Law 3/2007, of 22 March, for the effective equality of women and men, it contemplates the full practice of the provisions of the directive.

There is, however, one point of the directive which has not had an exact correspondence in the law, as is the case concerning the two annexes to the Community standard: both the I, which contains the non-exhaustive list of the agents, procedures and working conditions to which particular attention should be paid in the assessment of risks because they may have a negative impact on the health of pregnant workers or the foetus; such as the II, which includes the non-exhaustive list of the agents and working conditions in respect of which neither the pregnant worker nor the worker in the period Breastfeeding may under no circumstances be obliged to carry out activities which, in accordance with the risk assessment, entail the risk of exposure to them, where their safety or health is jeopardised. The reason why these annexes have not had a literal plasmation in the Spanish rules is because they both include non-exhaustive relationships, so that, at the time of transposition, it was considered that including such listings could induce wrongly think that only risks and measures should be assessed with respect to the agents, procedures and working conditions included in those Annexes.

However, the experience gained over these years has shown the need to facilitate the identification of these agents, procedures and working conditions, as well as to ensure more effective implementation. (a) the provisions for the protection of maternity, without it being necessary to limit the agents, procedures or working conditions which trigger the measures provided for in Article 26 of Law 31/1995 of 8 November 1995, Prevention of Occupational Risks. This was reflected in the Organic Law 3/2007 of 22 March for the effective equality of women and men, which considered the need to adopt measures in this field as an integral part of women's right to effective equality at work. To this end, it granted a mandate to the Government to regulate the content of the Annexes to Directive 92/85/EEC in the Spanish legal order.

Therefore, this regulatory modification does not reduce the level of protection already established in our country regarding pregnant workers and breastfeeding mothers, but aims to facilitate the realization of the evaluation This is a risk without a regression in relation to the security constraints already achieved, since the two lists that are now incorporated maintain the non-exhaustive character of the directive.

To carry out the regulatory development necessary to incorporate the two annexes, it has been chosen to amend the Royal Decree 39/1997 of 17 January, which approves the Regulation of the Prevention Services, as it is considered to be the most appropriate standard for this, since it contains the general provisions relating to the assessment of risks at work. Article 4 (1) (b) of Royal Decree 39/1997 of 17 January 1997 is amended to specify that, in the risk assessment, account shall be taken of the possibility of the worker taking up or going to occupy it. particularly sensitive, due to its personal characteristics or known biological status, to any of those conditions.

This is the following point where a new heading is included regarding the assessment of the risks to pregnant workers or breastfeeding mothers. In one case, reference is made to the new Annex VII to the Prevention Services Regulation, which includes a non-exhaustive list of agents, procedures and working conditions which may have a negative impact on the health of workers. pregnant or breast-feeding, of the foetus or of the child during the period of natural lactation, in any activity likely to present a specific risk of exposure, while in the other case it concerns the new Annex VIII of the Regulation itself, divided into two parts.

Part A includes a non-exhaustive list of the agents and working conditions in respect of which the employer, once he is aware of the state of pregnancy, must prevent the pregnant worker from carrying out activities which, the risk of exposure to them, where their safety or health or that of the unborn child is endangered; in addition, the breastfeeding worker may not, in any event, carry out activities which, the risk of exposure to the risk of exposure to the agents or conditions of the work listed in Part B of the same Annex, where their safety or health or that of the child is endangered during the period of natural lactation.

Paragraphs two and three of the single article incorporate into Royal Decree 39/1997 of 17 January the two new annexes, as Annexes VII and VIII respectively.

In the elaboration of this royal decree, the most representative business and trade union organizations have been consulted and the National Commission on Safety and Health at Work has been heard.

In its virtue, on the proposal of the Ministers of Labor and Immigration and of Health and Consumer Affairs and of the Minister of Equality, with the prior approval of the Minister of Public Administrations, in agreement with the Council of State and deliberation of the Council of Ministers at its meeting on 6 March 2009,

DISPONGO:

Single item. Amendment of Royal Decree 39/1997 of 17 January approving the Regulation of the Prevention Services.

Royal Decree 39/1997 of 17 January, approving the Prevention Services Regulation, is amended as follows:

One. Paragraph (b) of Article 4.1 is worded as follows:

" (b) The possibility that the worker who occupies or will occupy him is particularly sensitive, due to his or her personal characteristics or known biological status, to any of these conditions.

In particular, for the purposes of the provisions on risk assessment in Article 26.1 of Law 31/1995 of 8 November of the Prevention of Occupational Risks, Annex VII to this royal decree includes a non-exhaustive list of agents, procedures and working conditions which may have a negative impact on the health of pregnant or breastfeeding workers, the foetus or the child during the period of natural lactation, in any activity susceptible to a specific risk of exposure.

In any case, the pregnant worker may not carry out activities which are at risk of exposure to the agents or working conditions included in the non-exhaustive list in Part A of Annex VIII, where, according to the conclusions obtained from the risk assessment, this may endanger their safety or health or the health of the foetus. The breastfeeding worker shall also be unable to carry out activities involving the risk of exposure to the agents or working conditions listed in the non-exhaustive list in Part B of Annex VIII when the assessment is carried out. It is clear that this may endanger your safety or health or that of the child during the period of natural breast-feeding. In the cases provided for in this paragraph, the measures provided for in Article 26 of Law 31/1995 of 8 November 1995 on the Prevention of Occupational Risks shall be adopted in order to avoid exposure to the risks indicated. "

Two. A new Annex VII is incorporated with the following wording:

" ANNEX VII

Non-exhaustive list of agents, procedures and working conditions that may have a negative impact on the health of pregnant or breastfeeding workers, the fetus or the child during the period of Natural lactation

A. Agents.

1. Physical agents, where it is considered that they may involve foetal injury or cause a detachment of the placenta, in particular:

a) Chokes, vibrations, or movements.

b) Manual handling of heavy loads involving risks, in particular dorsolumbars.

c) Noise.

d) Non-ionising radiations.

e) Cold and extreme heat.

(f) Movements and postures, displacements, both inside and outside the workplace, mental and physical fatigue and other physical loads linked to the activity of the pregnant worker, who has given birth or in breast-feeding period.

2. Biological agents-Biological agents of risk groups 2, 3 and 4, according to the classification of biological agents established in Royal Decree 664/1997 of 12 May on the protection of workers against risks related to the the exposure to biological agents at work, in so far as it is known that such agents or the therapeutic measures they necessarily bring are endangering the health of pregnant workers or the unborn child and provided that they do not appear in Annex VIII.

3. Chemical agents.-The following chemical agents, in so far as they are known to endanger the health of pregnant or nursing workers, the fetus or the child during the period of natural lactation and provided they do not appear in Annex VIII:

(a) The substances labelled R 40, R 45, R 46, R 49, R 68, R 62 and R63 by the Regulation on the classification, packaging and labelling of dangerous substances, approved by Royal Decree 363/1995 of 10 March, or labelled as H351, H350, H340, H350i, H341, H361f, H361d and H361fd by Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures, to the extent that they do not appear still in Annex VIII.

(b) The chemical agents listed in Annexes I and III to Royal Decree 665/1997 of 12 May 1997 on the protection of workers from the risks related to exposure to carcinogens during the period job.

c) Mercury and derivatives.

d) Anti-mitotic drugs.

e) Carbon Monoxide.

f) Dangerous chemical agents of recognized skin penetration.

B. Procedures.

Industrial procedures set out in Annex I to Royal Decree 665/1997 of 12 May 1997 on the protection of workers from the risks related to exposure to carcinogens at work. "

Three. A new Annex VIII is incorporated, with the following wording:

" ANNEX VIII

Non-exhaustive list of agents and working conditions to which there may be no risk of exposure by pregnant or natural breastfeeding workers

A. Pregnant workers.

1. Agents.

a) Physical agents:

Ionizing radiation.

Jobs in high overpressure atmospheres, for example, in pressure rooms, submarinism.

b) Biological agents:

Toxoplasma.

Rubella virus.

Except if there is evidence that the pregnant worker is sufficiently protected against these agents by their immunisation status.

c) Chemical agents:

Labelled substances R60 and R61, by the Regulation on the classification, packaging and labelling of dangerous substances, approved by Royal Decree 363/1995 of 10 March, or labelled as H360F, H360D, H360FD, H360Fd and H360Df by Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures.

The carcinogenic and mutagenic substances listed in Table 2 in the "Document on occupational exposure limits for chemical agents in Spain" published by the National Institute for Safety and Health at the Work for which there is no exposure limit value assigned, in accordance with Table III of that document.

Lead and derivatives, to the extent that these agents are susceptible to being absorbed by the human organism.

2. Working conditions. -Underground mining jobs.

B. Breastfeeding workers.

1. Chemical agents:

The substances labelled R 64, by the Regulation on the classification, packaging and labelling of dangerous substances, approved by Royal Decree 363/1995 of 10 March, or H362 by Regulation (EC) No 1272/2008 European and Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures.

The carcinogenic and mutagenic substances listed in Table 2 in the "Document on occupational exposure limits for chemical agents in Spain" published by the National Institute for Safety and Health at the Work for which there is no exposure limit value assigned, in accordance with Table III of that document.

Lead and derivatives, to the extent that these agents are susceptible to being absorbed by the human organism.

2. Working conditions. -Underground mining work. "

Single additional disposition. Assessment of the provisions contained in the single article.

Within three years of the entry into force of this royal decree, the Ministry of Labour and Immigration will assess the functioning of the provisions contained in the single article in order to assess the need for to update or amend the agents, substances or work procedures referred to in Annexes VII and VIII to Royal Decree 39/1997 of 17 January, and to incorporate into them any amendments which may be made to the legislation; Community on the subject.

The evaluation will be carried out in advance of the Ministries of Labor and Immigration and Health and Consumer Affairs, giving the National Safety and Health Commission the transfer of this information.

Single repeal provision. Scope of regulatory repeal.

All provisions of equal or lower rank are repealed to be opposed to the provisions of this royal decree.

Final disposition first. Regulatory enablement.

The Minister of Labor and Immigration is hereby authorized to issue as many provisions as are necessary for the implementation of the provisions of the present real, prior to the National Commission on Safety and Health at Work. decree.

Final disposition second. Incorporation of European Union law.

By this royal decree, the Annexes to Council Directive 92/85/EEC of 19 October 1992 on the application of measures to promote the improvement of safety and health in the European Union are incorporated into Spanish law. work of the pregnant worker, who has given birth or is breastfeeding.

Final disposition third. Entry into force

This royal decree will enter into force on the day following its publication in the "Official State Gazette".

Given in Madrid, on March 6, 2009.

JOHN CARLOS R.

The First Vice President of the Government and Minister of the Presidency,

MARIA TERESA FERNANDEZ DE LA VEGA SANZ