Pregnant employees

Key points

  • In order to meet your obligations under anti-discrimination laws, ensure that pregnant employees are not subjected to negative comments, remarks and jokes about their pregnancy.

  • So far as is reasonably practicable, you must put systems in place to ensure the health and safety of all your workers, not just employees, while at work.

  • You should discuss with your pregnant employee any changes that need to be made so she can continue to work safely during her pregnancy.

  • 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.

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

See Tool 2 Responding to pregnancy announcements

Top Tip

Accommodate change

Offer congratulations and don’t make assumptions about what your employee can or can’t do – discuss any concern you may have with your employee about her ability to perform the requirements of the role. Discuss with your employee any changes that need to be made so she can continue to work safely during her 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.

Can I ask an employee if she is pregnant?

Even if you suspect an employee is pregnant, perhaps because she is showing signs of morning sickness, or has taken some personal/carer’s leave, you should generally not ask and should wait for the employee to notify you of her pregnancy. 

If, however, you suspect that an employee is pregnant and there are genuine work health and safety concerns, you should ask her in a confidential and sensitive manner and make reasonably practicable adjustments to her current role.

It is very important that managers respect an employee’s request for confidentiality regarding their pregnancy and when and how their pregnancy should be disclosed to others in the workplace.

If managers need to speak to Human Resources or a colleague responsible for work health and safety about an employee’s pregnancy, this should be done in consultation with the pregnant employee.

Under anti-discrimination laws, employees who may be (or are) pregnant must not be disadvantaged or treated less favourably than other employees when it comes to, for example, promotions, pay reviews and other workplace opportunities.

When should an employee tell me about her pregnancy?

While an employee does not generally have to notify her employer that she is pregnant, there may be health and safety reasons (for both the employee and her unborn child) to do so.

All people in the workforce have a duty to take 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 work health and safety obligations.

Written notification by the pregnant employee 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 for pregnant women who are working with lead in Western Australia.

If your workplace poses special risks to pregnant employees, you should proactively provide adequate information about those risks and any health monitoring requirements to all employees, not just to those who are known to be pregnant. This will help employees in higher-risk jobs to make an informed decision about when to notify you of a pregnancy or planned pregnancy to help you adequately manage the work health and safety risks.

Notification may be a pre-requisite to obtaining certain employee entitlements. For example, if an employee is eligible and wishes to take unpaid parental leave under the Fair Work Act, the employee must notify you in writing at least 10 weeks before starting the unpaid parental leave or, if this is not possible, as soon as practicable (which may be after the leave has started). See here for notice requirements for the taking of unpaid parental leave under the Fair Work Act.

What are my work health and safety obligations?

You must do what is reasonably practicable to ensure the health and safety of all your workers, including those who are pregnant. As pregnant workers’ needs may change during their pregnancy, you will need to take these changes into account and respond accordingly to meet your work health and safety obligations.

Managing risks to health and safety at work

Managing risks means eliminating or minimising risks, so far as is reasonably practicable.

As part of your general approach to managing risks, you should identify and assess any health or safety risks to workers of childbearing age and in particular risks to pregnant women and new mothers. For example, risks that may arise from any process, working conditions, physical requirements or exposure to biological or chemical agents.

You must also implement adequate risk control measures, to address those risks.

Putting plans into place is an easy way of ensuring everyone knows how to respond to work health and safety concerns when they need to.

Higher-risk workplaces

If your workplace poses special risks to pregnant women and/or new mothers, you should proactively provide adequate information about those risks and any health monitoring requirements to all your workers, not just to those who are known to be pregnant.

Providing this kind of information early is important because workers may not disclose their pregnancy if they do not have relevant information about the workplace risks.

Additional requirements may apply in relation to higher-risk industries like aviation, underground mining, underwater diving and jobs that involve working with chemicals and or radiation, so you will need to check with the relevant authority.

Individual risk assessment

You will need to assess new risks as they come to your attention - for example if a worker gives you updated medical advice about her pregnancy.

You must take into account any medical advice from your worker’s GP or midwife about her health, and adjust her working conditions accordingly. For example, if the worker continues to work with hazardous chemicals, you need to assess the risks to the worker and her baby. This could be, by checking the safety data sheet or instructions from the manufacturer.  If there is any uncertainty you should seek advice from a professional.

Depending on the risk assessment, the worker’s hours of work or conditions may need to be varied, or she mayneed to be temporarily transferred to another job or work area.

You should consider all reasonably practicable options when accommodating pregnant workers and be prepared to consult on possible options to find individual solutions.

Further information:

Contact federal, state or territory work health and safety authorities for more information. See contact details and see:

See Tool 3 Work, health & safety hazards & risk management issues

What changes may need to be made for a pregnant employee?

Some women experience a variety of physical effects such as tiredness and nausea during certain stages of pregnancy. In most cases, this does not prevent women from performing their work. It may however require some changes to their job or work environment.

Anti-discrimination law considerations

Employers are encouraged to accommodate the effects of pregnancy in the workplace in order to avoid discriminating on the basis of pregnancy under, for example, the Sex Discrimination Act.

Common ways to accommodate pregnant employees include more breaks, different start and finish times, provision of a car space, ensuring pregnant 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.

An employment condition, requirement or practice that unreasonably fails to accommodate pregnancy may disadvantage pregnant employees and therefore constitute indirect discrimination under, for example, the Sex Discrimination Act. While a certain requirement or practice may appear to be non-discriminatory, ultimately it could have the effect of disadvantaging pregnant employees. The fact that an employer did not intend to discriminate is not relevant under the Sex Discrimination Act. It is the impact of the requirement or practice that is assessed. Employers should consider all reasonable options when accommodating pregnant employees and be prepared to discuss these options with employees to find individual solutions.

Work health and safety considerations

Under work health and safety laws, you must do what is reasonably practicable to ensure the health and safety of your pregnant workers. As pregnant worker’s needs may change throughout her pregnancy you must continue to assess and manage any risks so far as is reasonably practicable as they arise.

As is the case under anti-discrimination laws, be prepared to consult on all reasonably practicable options to find individual solution.

Further information:

Specific information on individual workplaces can be provided by some federal and state or territory work health and safety authorities. See contact details.

What if a job is not safe for a pregnant employee?

Pregnant employees, like other employees, have the right to cease or refuse to carry out work, if they have a reasonable concern that carrying out the work would expose them to a serious risk to their health or safety due to an immediate or imminent exposure to a hazard. For most of Australia this specific right is found in the work health and safety legislation, but in Victoria it falls under an employee’s duty to take reasonable care for their own health and safety.

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, an employee may take personal/carer’s leave if the leave is taken because the employee is not fit for work,   because of personal illness or injury. (An employee may also take personal/carer’s leave to provide care or support to a member of the employee’s immediate family (e.g. their child) or household who, due to personal illness, injury or an unexpected emergency, requires care or support.)

An employee may access personal/carer’s leave because of a pregnancy-related illness. In addition to this, 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.

The employee must give you 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 you of the period, or expected period, of the leave.

You are entitled to 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 an employee 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 you allow employees to access paid or unpaid leave for other purposes, to meet your obligations under anti-discrimination laws, you should afford pregnant employees the same flexibility in regard to attending prenatal medical appointments. 

What leave is available for miscarriage or stillbirth?

Particular sensitivity towards both men and women is needed to respond to miscarriage and stillbirth. Support should be given to an employee’s manager to have these conversations sensitively and to provide appropriate support for the employee in the workplace.

If an employee has sought unpaid parental leave under the Fair Work Act and prior to the leave commencing the pregnancy ends (other than in the birth of a live child):

  • the employee may give you written notice cancelling the leave
  • you may, where appropriate, give the employee written notice cancelling the leave.

If while the employee is on unpaid parental leave under the Fair Work Act, the pregnancy ends (other than in the birth of a live child):

  • the employee may give you written notice that they wish to return to work and you must give the employee written notice requiring the employee to return to work on a specified day which must be within 4 weeks after you receive the employee’s written notice
  • you may, where appropriate, give the employee written notice requiring the employee to return to work on a specified day which must be at least 6 weeks after you give the notice.

Unpaid special maternity leave (referred to at What if a job is not safe for a pregnant employee? above) is also available for employees if the pregnancy ends within 28 weeks of the expected due date.

What about employees undergoing fertility treatment?

Employees undergoing fertility treatments are covered by the Sex Discrimination Act. This means an employee undergoing fertility treatment cannot be treated less favourably than other employees.

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

Privacy considerations are especially important for employees undergoing fertility treatments and any medical information must be kept confidential.

What are my obligations to replacement employees?

If you hire an employee to perform the work of an employee who is going on parental leave, the Fair Work Act requires you to notify the replacement employee that:

  • the role is temporary;
  • the other employee has a right to return to their pre-parental leave position when they return to work and
  • the employee and the employer have a right to cancel or end the leave early in certain circumstances (e.g. stillbirth or infant death).

It is important for you to make the temporary nature of the role clear in advertisements, during interviews and in the letter of offer to replacement employees. Managers and supervisors should also be cautious about making promises regarding permanent employment to replacement employees.

Hiring someone ‘generally’, rather than a specific replacement employee to cover some of the parental leave employee’s tasks, can create challenges when the employee returns from parental leave. Poor communication could mean you have to manage both the returning employee’s right to return to their role, and the new employee’s expectations of continuing employment. If you need to end the employment of the replacement employee, then usual workplace laws will apply regarding termination.

More information

Australian Human Rights Commission

Fair Work Ombudsman

Best Practice Guides:

Fact sheets: