Pregnant employee entitlements

There are a range of entitlements available for pregnant employees.

On this page:

Flexible unpaid parental leave during pregnancy

Employees who are pregnant and who are eligible for unpaid parental leave can choose to take some of their leave in a flexible way before the birth of their child. They can take flexible unpaid parental leave up to 6 weeks before the expected date of birth.

Learn more about flexible unpaid parental leave at Taking parental leave.

Unpaid special parental leave

A pregnant employee who is eligible for unpaid parental leave can take unpaid special parental leave if they're unfit for work because they:

  • are pregnant have a pregnancy-related illness
  • have a pregnancy loss after 12 weeks and their baby is not stillborn.

Learn more about eligibility for unpaid parental leave from our Parental leave page.

If an employee takes unpaid special parental leave because of a pregnancy-related illness, the leave will end when the pregnancy ends or the employee is no longer unfit for work due to the illness, whichever is earlier.

If the employee takes leave because of a miscarriage or termination, the leave can continue until they're fit for work.

While the employee won’t be entitled to take unpaid special parental leave if the baby is stillborn, they may still be entitled to take unpaid parental leave or compassionate leave.

Unpaid special parental leave doesn’t reduce the amount of unpaid parental leave that an employee can take.

Notice and medical certificates

An employee will need to tell their employer as soon as possible that they’re taking unpaid special parental leave. This can be after the leave has started. They will also need to tell their employer how long they expect to be on leave.

An employer can ask for evidence (for example a medical certificate).

Directing employees to take unpaid parental leave

If a pregnant employee wants to work in the 6 weeks before their due date, their employer can ask for a medical certificate within 7 days that states whether:

  • the employee is fit for work
  • if the employee is fit for work, whether it’s inadvisable for the employee to continue in their current position because of an illness or risk arising out of the employee's pregnancy or hazards connected with their position.

If the certificate says they’re fit for work but it isn’t safe for them to continue in their normal job, then the employee will be entitled to be transferred to a safe job or to access no safe job leave.

The employer can direct the employee to start unpaid parental leave (other than flexible unpaid parental leave) if the:

  • employee doesn’t provide a medical certificate within 7 days
  • certificate says the employee isn’t fit for work, or
  • certificate says it’s inadvisable for the employee to continue in their present position and the employee hasn’t provided the required notice and evidence for taking unpaid parental leave.

An employee’s unpaid parental leave starts when they’re directed to take unpaid parental leave and will count as part of their total unpaid parental leave entitlement.

If the employee planned to take unpaid parental leave at a later date after the birth, the period of directed leave doesn’t have to be taken in a continuous period with the other parental leave.

Sick leave

Employees who are pregnant still get their ordinary sick leave entitlements while they’re at work.

Pregnancy is not an illness or injury. If a pregnant employee experiences a pregnancy-related illness or injury, they can take accumulated sick leave or unpaid special parental leave.

Find out more about sick leave entitlements at Sick and carer’s leave.

Compassionate leave

Employees can take compassionate leave if:

  • a member of their immediate family or household dies, or contracts or develops a life-threatening illness or injury
  • a baby in their immediate family or household is stillborn
  • they have a miscarriage
  • their current spouse or de facto partner has a miscarriage.

Find out more about compassionate leave entitlements at Compassionate and bereavement leave.

Safe jobs

Pregnant employees (including casuals) are entitled to be transferred to a safe job if they have given their employer evidence that they are fit for work but it’s inadvisable for them to continue in their current position because of:

  • an illness or risk arising out of the employee's pregnancy, or
  • hazards connected with their position.

This entitlement extends to employees that aren’t eligible for unpaid parental leave. For example, employees who would not have worked for their employer for at least 12 months before the expected date of birth of their child.

If there is an appropriate safe job available, the employer must transfer the employee to that job. The safe job must have the same ordinary hours of work as the employee’s current position, unless the employee agrees to different ordinary hours.

The employee must get the full rate of pay rate that they got in their usual job for the hours they work in the safe job.

The employee must stay in the transferred role until:

  • it's safe to go back to their normal job, or
  • their pregnancy ends.

When no safe job is available

If there is no appropriate safe job available, the employee can take no safe job leave. If the employee is entitled to unpaid parental leave, no safe job leave is paid.

No safe job leave is paid at the base rate of pay for the employee's ordinary hours of work.

For a casual, no safe job leave is paid at the base rate of pay (not including the casual loading) for the average number of hours they would have worked in the period they're on leave.

Employees who aren't entitled to unpaid parental leave can take unpaid no safe job leave.

Protection from discrimination

An employee can’t be discriminated against because they’re pregnant. This means that an employee can’t be fired, demoted or treated differently from other employees because they are pregnant.

Example: Discriminating against a pregnant employee

Melissa is a full-time employee and works in a clothing store. She tells her boss Peter that she is pregnant.

A few weeks later her hours are reduced and she is told that she is now a part-time employee. When Melissa asks Peter about this, he says he's reducing her hours to help her with her pregnancy and that in his family the women always reduce their hours when they are pregnant.

Even though Peter thinks he is helping Melissa, this is still discrimination. He is treating her differently from his other employees because she is pregnant.

For more information on discrimination see Protection from discrimination at work.

Source reference: Fair Work Act 2009 s.72A, 73, 80-82A and 351

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