Entitlements while pregnant

There are a range of entitlements and protections available for pregnant employees.

Leave during pregnancy

Pregnant employees can access different leave entitlements during pregnancy, including:

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 Types of 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 and have a pregnancy-related illness, or
  • have a pregnancy loss after 12 weeks and their baby isn’t stillborn.

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 fit to return to their job, whichever is earlier.

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

If the baby is stillborn, the employee won’t be able to take unpaid special parental leave but can still take continuous or flexible unpaid parental leave, as well as 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 such as a medical certificate.

Source reference: Fair Work Act 2009 s.80

Example: Taking unpaid special parental leave

Mariana is pregnant and working full-time.

Mariana has given notice to her employer, Sue, that she will be taking 12 months continuous parental leave, starting in 4 weeks. Mariana’s expected date of birth is in 10 weeks.

Mariana starts to feel sick and goes to the doctor. The doctor confirms Mariana has a pregnancy-related illness. The next day, Mariana’s illness gets worse, and she is no longer fit to work.

Mariana speaks to Sue and tells her she can’t work while she is experiencing this illness. Mariana gets a medical certificate from her doctor and gives it to Sue.

Mariana has used up her entitlement to paid personal leave and takes unpaid special parental leave for 4 weeks, until her continuous parental leave starts.

Mariana takes 12 months of continuous parental leave, because the 4 weeks of unpaid special parental leave did not reduce her parental leave period.

Sick leave

Pregnant employees can still access sick leave 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 sick leave or unpaid special parental leave.

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

Compassionate leave

Compassionate leave is an entitlement for all employees.

Pregnant employees can access 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.

Flexible working arrangements

Under the National Employment Standards, pregnant employees can request flexible working arrangements in certain circumstances.

Examples of flexible working arrangements include changes to:

  • hours of work – for example, changes to start and finish times
  • patterns of work – for example, split shifts or job sharing
  • locations of work – for example, working from home.

There are rules about how employees can make these requests and how employers must respond to them.

For more information, see Flexible working arrangements.

Safe jobs

All pregnant employees (including casuals) have the right to a safe job.

A pregnant employee is entitled to be transferred to a safe job if they are fit for work, but their current position is not appropriate for them, due to:

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

The right to a safe job applies to all pregnant employees, even those that aren’t eligible for unpaid parental leave (employees who haven’t 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 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 employee’s base pay rate for their ordinary hours of work.

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

For concerns about safety in the workplace, employees and employers can get further information from their state or territory workplace health and safety body.

Source reference: Fair Work Act 2009 s.81, 81A, 82 and 82A

Directing employees to start parental leave

Pregnant employees usually have to start their parental leave up to 6 weeks before the expected birth (or earlier if the employer agrees).

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 not recommended 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 the employee is fit for work but it isn’t safe for them to continue in their normal job, then the employee can be given a safe job or, if no safe job is available, they can take no safe job leave.

The employer can direct the employee to start continuous 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 not recommended 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 period of 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 continuous with their planned parental leave.

Source reference: Fair Work Act 2009 s.73

Example: Employee directed to take parental leave

Maya is pregnant and works full-time in a warehouse.

Maya’s partner, Jackie, is planning on caring for the baby for the first 6 months after the birth. Maya tells her employer, Wendy, that she will take up to 15 days of flexible parental leave, which she plans to take as one week prior to birth and another 2 weeks after the birth.

Maya will then take 6 months continuous parental leave after Jackie finishes her 6 months of parental leave.

Maya wants to work up to 1 week before the expected due date. However, a month from the expected due date, Wendy becomes concerned about Maya’s safety at work as her job involves heavy lifting. Wendy asks Maya to provide a medical certificate saying that she is fit for work.

Maya’s doctor doesn’t think Maya is fit for working in the warehouse so close to the due date. Maya’s doctor gives her a medical certificate saying that she shouldn’t continue in her role because of risks and hazards.

Based on Maya’s medical certificate, Wendy directs her to start parental leave immediately.

Maya still takes the 3 weeks flexible parental leave she had already planned before and after the birth. She also takes 6 months of parental leave after Jackie’s 6 months of parental leave has ended.

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, Melissa’s 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 discrimination. He is treating her differently from his other employees because she is pregnant.

Melissa finds the Protection from discrimination at work page on our website and identifies that this may be discrimination.

Melissa speaks to Peter about her reduced hours and how it could be discrimination because she is pregnant. Peter considers this and changes Melissa’s hours back to full-time.

Learn more about workplace discrimination at Protection from discrimination at work.

Tools and resources

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