If you are pregnant and employed, even if that employment is on a casual basis, you will need to discuss your leave arrangements with your employer prior to commencing the leave period.
How much leave you intend to take is just one aspect of the discussion you will need to have with your employer. You should also discuss how the leave might affect your employment, whether you are entitled to paid leave, your return to work and your right to request a flexible working arrangement.
So, when does this discussion need to take place and how much detail are you required to divulge to your employer?
When do I need to tell my employer about my pregnancy?
There is no legal obligation for you to inform your employer that you are pregnant at a particular point in the pregnancy. It is up to you to decide when you would like to commence having discussions about your leave and entitlements, however, it is typical for a pregnant employee to disclose their pregnancy to their employer at least 10 weeks prior to taking parental leave, even if the leave will be unpaid. This gives the employer enough time to organise workplace arrangements that are appropriate for all parties. You should always check your employer’s policies and procedures to confirm if there are any required timeframes around the commencement of parental leave.
What can my employer legally require of me?
Most people choose to commence parental leave at some stage within the last six weeks of their pregnancy, however, you may elect to work during the last six weeks if your doctor believes that it is safe to do so. In this instance, your employer may request that you provide a medical clearance certificate that confirms your doctor’s belief that it is, in fact, safe for you to continue to work during the remaining six weeks of pregnancy.
If you cannot or do not provide your employer with the medical clearance certificate your employer may require you to commence parental leave immediately.
Paid and unpaid parental leave
Each organisation will have its own specific policies and procedures pertaining to paid and unpaid parental leave, however, per section 70 of the Fair Work Act 2009, an employee is entitled to twelve months of unpaid parental leave if they are taking leave due to:
- the birth of their biological child or the child of their spouse or de facto partner; or
- their adoption of a child; so long as
- that employee has or will have responsibility for caring for the child.
Discrimination against pregnant employees
It is against the law for your employer to discriminate against you based on your pregnancy. ‘Discrimination’ includes being treated less favourably, adversely or differently simply because you are pregnant. Examples of this include:
- terminating your employment because you are pregnant;
- demoting you or removing your responsibilities because you are pregnant; and/or
- assuming you are unable to fulfil aspects of your role because you are pregnant.
Providing a safe working environment
If pregnancy is a genuine factor in affecting an employee’s duties they may be moved into an alternate yet comparable role for the duration of their pregnancy in order to maintain a safe working environment.
In cases where an alternate or suitable role does not exist in the workplace, ‘no safe job leave’ may be taken.
If you feel you have been discriminated against in the workplace based on your pregnancy you may wish to seek legal advice. Our experienced employment lawyers can assist you to take the right course of action for your circumstances.