Pregnant employees have the same rights as other employees. You cannot fire, demote or treat them less favourably because they are pregnant and you have a responsibility to protect their health and safety at work.
As well as the usual entitlements, like sick leave or annual leave, there are regulations that allow pregnant employees to take special maternity leave. They may also no longer be able to perform some or all of their normal work duties, which you can determine by conducting a risk assessment for the pregnant employee.
Seek good advice before making any decision around a pregnant employee’s role or responsibilities. Making changes to an employee’s role or responsibilities based on a pregnancy, if not handled correctly, can expose your business to unfair dismissal, discrimination or adverse action claims.
Under the National Employment Standards, pregnant employees are entitled to a range of paid and unpaid leave entitlements. If a pregnant employee intends to take parental leave, they need to tell you in writing, which must specify the intended start and end dates of the leave. This written notice must be given at least 10 weeks before starting the leave or, where that is not practicable, as soon as practicable and, if you ask for it, the employee intending to take parental leave must provide medical evidence.
To be eligible for parental leave, the employee must have worked for you for at least 12 months, and they must have, or will be, responsible for the care of a child. For casual employees, they must be employed by you on a regular and systematic basis for at least 12 months prior to the birth of the child. There must also be the expectation that the employee would continue employment on a regular and systematic basis, if it were not for the birth of the child.
Under Fair Work regulations, pregnant employees can take personal leave if they are not fit to work due to a pregnancy-related illness or injury. As is the usual case for personal leave, you have the right to ask for evidence that would satisfy a reasonable person that the employee is using the leave for the intended purpose.
Special maternity leave is unpaid and for employees with a pregnancy-related illness or whose pregnancy ends within 28 weeks before the expected date of birth of the child, otherwise than by the birth of a living child. Special maternity leave does is separate to unpaid parental leave. Parental leave may be taken when an employee’s spouse or de facto partner gives birth. There are rules around the timing of the taking of leave if both parents intend on taking parental leave, with a limited right to take parental leave at the same time.
Leading up to the childbirth, a pregnant employee will need to attend prenatal medical appointments. Some awards, agreements, and employment contracts allow the use of personal leave to attend these appointments.
If you have previously allowed other employees to take paid or unpaid leave for other reasons (outside of pregnancy), you should treat pregnant employees in the same way and give them the flexibility to attend such appointments.
Some employees may need to go on stress leave while pregnant. If you have allowed them to take paid or unpaid leave due to a pregnancy-related illness or injury, you should allow the same level of flexibility when it comes to pregnancy-related stress leave.
Under Fair Work regulations, it is unlawful to treat a pregnant employee badly or force them to work in unreasonable conditions.
The most common examples of discrimination towards pregnant employees include:
Whether or not an employer’s action is unlawful will depend on the circumstances. If an employee issues a complaint to the Fair Work Ombudsman (FWO), they will investigate the issue and determine an appropriate course of action.
All employees who return to work from maternity leave are entitled to the job they had before going on leave, even if a permanent or temporary worker is in their role as a replacement.
If the returning employee made the switch to a safe job before the pregnancy, or they agreed to a flexible working arrangement (e.g. reduced hours), they are entitled to go back to the same job they had before the switch or flexible arrangement.
While on parental leave an employee’s old job may no longer exist or it may change. When this happens, the returning employee must be given an offer of a suitable replacement job that:
If the employee’s job no longer exists after they come back from maternity leave, they will be seen to have been made redundant. Therefore, you must go through the correct redundancy procedure and either redeploy or dismiss the employee, paying out any owed leftover wages or entitlements.
Employsure can offer you practical advice about pregnant employees and how to manage their entitlements and your obligations. For peace of mind, please call our 24-hour help line on 1300 651 415 to learn how we can support your business.