Working while pregnant (or potentially pregnant)

Key points

  • Being pregnant does not mean that you cannot continue to make a valuable contribution to the business. It is against the law to discriminate against you because you are pregnant.
  • You and your employer should discuss any changes that need to be made so that your workplace is safe for you while you are pregnant. 
  • You have a duty to take reasonable care for your own health and safety and to comply, so far as you are reasonably able to, with any reasonable instructions relating to health and safety in the workplace.

Top Tip

Discuss with your employer any changes that need to be made so you can work safely during your pregnancy.

Common ways to accommodate pregnant employees include more breaks, different start and finish times, provision of a car space, ensuring employees can have toilet breaks as needed and a chair to sit on if the job usually involves standing up for long periods of time.

When do I need to tell my employer I am pregnant?

While employees do not generally have to notify their employer that they are pregnant, there may be health and safety reasons to do so.

All people in the workforce have a duty to take reasonable care of their own health and safety and to comply, so far as they are reasonably able to, with any reasonable instruction given by their employer to allow their employer to comply with their work health and safety obligations.

Written notification to your employer as early as possible is advisable for higher-risk jobs (e.g. involving using or handling lead or other hazardous chemicals) and notification is mandatory if you are pregnant and are working with lead in Western Australia.

You may need to notify your employer to access certain employee entitlements. For example, if you have worked for your employer for at least 12 months before the date of birth or expected date of birth of your child and you are planning on taking unpaid parental leave under the Fair Work Act, you must, if practicable, tell your employer at least 10 weeks before the intended start date of the leave that you plan to take this leave.
See Employees and leave which deals with requesting and going on unpaid parental leave under the Fair Work Act.

Can my employer ask me if I am pregnant?

Your employer should only ask you if you are pregnant in certain circumstances. If, for example, your employer suspects that you are pregnant and there are genuine work health and safety concerns if you continue in your usual role, your employer may ask you in order to make reasonably practicable adjustments to your current role. They should provide information about the risks they think may need to be addressed.

It may be inappropriate if your employer asks if you are pregnant and there are no genuine work health and safety concerns.

If your workplace poses special risks to pregnant workers, your employer should provide information about those risks to the workforce. This should help you work out when to notify your pregnancy to your employer for work health and safety reasons.

How should I handle a negative response from my manager about my pregnancy?

Most employers will be happy that you are pregnant but they may also feel under pressure and wonder what your pregnancy means for the organisation and the work that needs to be done.

The best way to handle a negative response is to set aside time to discuss any changes that might need to be made to your work activities and any leave you wish to take. It may help to refer to workplace policies. You could also consider giving your manager a few days to get used to the idea before you have a detailed conversation. Make sure you are clear about how you want the announcement of your pregnancy to be made to the rest of the organisation.

Remember that even if your manager or another staff member has a negative response, there might be other people in the organisation who will be able to discuss your needs with you. Perhaps another employee you trust, someone in Human Resources or a union representative.

What if my manager or colleague keeps making negative comments or jokes about my pregnancy?

This could amount to discrimination. You may want to deal with the situation yourself by raising it directly with your manager or your manager’s supervisor. If this does not resolve the situation, or you do not feel comfortable doing this, you can make a complaint.

See ‘Assistance and making a complaint’ which sets out the various avenues for making a complaint.

See also, the Australian Human Rights Commission’s Good Practice Good Business guide Workplace discrimination, harassment and bullying

What should I do if I am worried about my health or safety at work while pregnant?

You may experience a variety of physical effects such as tiredness and nausea during certain stages of your pregnancy. While this is unlikely to prevent you from performing your work, you may require some changes to your job or work environment.

You should have a conversation with your employer about the changes that can be made so that you can keep doing your job. Most of the time you and your manager will be able to find a solution and you will be able to continue safely doing your job with a few changes.

You should consult with your general practitioner/specialist and obtain a medical certificate if you believe that your work is impacting on your health or pregnancy and you need adjustments made to your job or work environment.  Your employer must take into account any medical advice from your general practitioner/specialist about your health and adjust your working conditions accordingly.

Under work health and safety laws, businesses must do what is reasonably practicable to ensure the health and safety of all their workers - including those who are pregnant. Employers must be prepared to consult on possible options to find appropriate solutions. You have the right to cease or refuse to carry out work, if you have a reasonable concern that carrying out the work would expose you to a serious risk to your health or safety due to an immediate or imminent exposure to a hazard.

Under anti-discrimination laws, employers should consider all reasonable options for accommodating the needs of pregnant employees and be prepared to discuss these options with you to find individual solutions. Common ways to accommodate pregnant employees include more breaks, different start and finish times, provision of a car space, ensuring employees can have toilet breaks when needed and a chair to sit on if the job usually involves standing up for long periods of time. If your employer does not provide reasonable accommodations, this may be discrimination.

Under the Fair Work Act,all pregnant employees, including casuals, are entitled to move to a safe job if it is not safe for them to do their usual job because of their pregnancy. This includes employees that are not eligible for unpaid parental leave.

An employee who moves to a safe job will still get the same pay rate, hours of work and other entitlements that she got in her usual job. She and her employer can however agree on different working hours.

If there is no safe job available, the Fair Work Act provides that an employee can take ‘no safe job’ leave. This leave is:

  • Paid (at the base rate of pay) if the employee is entitled to unpaid parental leave under the Fair Work Act and
  • Unpaid if the employee is not entitled to unpaid parental leave under the Fair Work Act.

What leave is available for pregnancy related illness?

Under the Fair Work Act, you may take personal/carer’s leave if the leave is taken because you are not fit for work, because of personal illness or injury. (You may also take personal/carer’s leave to provide care or support to a member of your immediate family or household who, due to personal illness, injury or an unexpected emergency, requires care or support.)

You may access personal/carer’s leave because of a pregnancy-related illness e.g. gestational diabetes, pre-eclampsia, back pain resulting from pregnancy.

In addition to personal/carer’s leave, the Fair Work Act provides for unpaid special maternity leave for pregnant employees who are eligible for unpaid parental leave under the Fair Work Act and have a pregnancy-related illness.

You must give your employer notice of the taking of unpaid special maternity leave as soon as practicable (which may be a time after the leave has started) and must advise your employer of the period, or expected period, of the leave.

Your employer can ask for evidence such as a medical certificate showing that the leave is taken for the prescribed reason. The use of special maternity leave does not reduce the amount of unpaid parental leave under the Fair Work Act that you can take.

What leave is available for prenatal medical appointments?

As being pregnant in and of itself, is not technically an illness under the Fair Work Act, use of personal/carer’s leave depends on individual circumstances.

Some awards, agreements or workplace policies specifically allow personal leave to be used to attend prenatal medical appointments.

If your employer allows access to paid or unpaid leave for other purposes, to meet their obligations under anti-discrimination laws, they should afford pregnant employees the same flexibility in regard to attending prenatal medical appointments.

I’m undergoing fertility treatment. What are my rights?

If you are undergoing fertility treatments, such as IVF or assisted reproductive technology, you are covered by the Sex Discrimination Act. This means you cannot be disadvantaged or treated less favourably than other employees.

Where fertility treatment impacts on your or your partner’s health (e.g. side effects from hormone therapy or other medication) you may be entitled to access personal/carer’s leave under the Fair Work Act on the basis of your personal illness or your need to care for or support your ill partner.

What should I do if my manager is treating me differently now that they know that I am pregnant?

If your pregnancy is one of the reasons why your supervisor is treating you unfavourably, for example, refusing to let you go on training or not considering you for a promotion, this may be discrimination under, for example, the Sex Discrimination Act.

You should approach your employer informally and try to solve the problems directly. A good way to do this is to discuss with your employer your concerns or write your employer an email or letter.   If this does not resolve the issue or you feel uncomfortable raising the issues directly with your employer, you can bring a complaint to the Australian Human Rights Commission. You may also have rights under other legislation, e.g. adverse action under the Fair Work Act and state or territory anti-discrimination laws.

What rights do I have under the Fair Work Act if my pregnancy ends?

Timing

Rights

If you miscarry within the first 12 weeks of pregnancy

You are entitled to take personal/carer’s leave. If you have used all of your personal/carer’s leave, you should request unpaid leave.

If your pregnancy ends within 28 weeks of the expected date of birth

Provided that you have completed at least 12 months of continuous service with your employer immediately before the expected date of birth of your child, you are entitled to a period of unpaid special maternity leave. You may also access other forms of accrued paid leave such as annual leave or long service leave.  If you have accrued paid personal/carer’s leave, you can take this instead of unpaid special maternity leave.

If the period of unpaid parental leave under the Fair Work Act has not commenced and the pregnancy ends other than in the birth of a live child

You or your employer may give written notice cancelling the leave.

If the period of unpaid parental leave has commenced and the pregnancy ends due to still birth, or the child dies

You can give your employer written notice that you wish to return to work and your employer must give you written notice requiring you to return to work on a specified day which must be within 4 weeks after your employer receives your written notice.

Also, your employer may, where appropriate, give you written notice requiring you to return to work on a specified day which must be at least 6 weeks after your employer gives you their written notice.

Case study

Example

Australian Human Rights Commission case study - complaint under the Sex Discrimination Act

The complainant was employed in a medical related position. She alleged that her employer offered her a promotion which was conditional on the outcome of a medical assessment. The complainant claimed her employer revoked the offer when she disclosed she was pregnant. On being advised of the complaint her employer reinstated the offer of promotion. The complaint was resolved on this basis.
Please note that the complainant could have chosen to bring her complaint to another organisation rather than to the Australian Human Rights Commission.  Please see ‘Assistance and making a complaint’ for information on the various organisations.

More information

Australian Human Rights Commission

Fair Work Ombudsman

Fair Work Commission