How Can Employers Manage Pregnancy at Work?

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Table of Contents

• What Should I Do If I Suspect My Employee is Pregnant?
• How Can Employers Avoid Pregnancy Discrimination?
• What Changes Should Employers Make For a Pregnant Employee?
• What If a Job Is Not Safe For a Pregnant Employee?
• Can I Direct an Employee to Take Parental Leave?
• Can I Hire Another Employee to Replace My Pregnant Employee?
• Strategies for Managing Pregnancy at Work
• Key Takeaways

As an employer, you must consider your legal obligations if one of your employees falls pregnant. While you might immediately consider the employee’s parental leave entitlements, you should consider how best to support pregnant employees while they continue to work before taking leave. This article explains how employers can manage pregnancy at work. 

What Should I Do If I Suspect My Employee is Pregnant?

An employee is not obliged to notify you about their pregnancy. Accordingly, you should wait for an employee to notify you about their pregnancy. However, where there are health and safety concerns for the employee, it is prudent for employers to ask the employee about their pregnancy. This way, employers can make necessary adjustments to their role. 

Additionally, employees have notification requirements under the Fair Work Act (‘FWA’) when they intend to take unpaid parental leave. Permanent employees with at least 12 months of continuous service with their employer may be entitled to 12 months of unpaid parental leave. This period may be extended for an additional 12 months should the employee provide a written request to their employer which is accepted. Generally, employees must provide written notice at least ten weeks before taking parental leave or as soon as possible before/after beginning parental leave.

How Can Employers Avoid Pregnancy Discrimination?

It is also important to remember that you cannot disadvantage or treat your employees any less favourably than other employees because of their pregnancy. 

For example, you cannot decide to pay the pregnant employee less upon a pay review because of their pregnancy. Additionally, you cannot demote a pregnant employee from a full-time ongoing basis to a casual employment arrangement because you discovered they were pregnant. 

Nevertheless, suppose you decide to take action against a pregnant employee that the law might consider ‘adverse’ (i.e. wage decreases or demotions). In that case, you must ensure that the reason for doing so is not their pregnancy. Moreover, you should document formal decisions to ensure your business is in the best possible position to defend the claim. 

What Changes Should Employers Make For a Pregnant Employee?

Any changes you introduce should try to accommodate the physical effects of pregnancy. Therefore, you should consider providing the worker with:

• more breaks;
• different working hours; and
• closer car parking spaces where applicable.

It is important to remember that even if you do not intend to discriminate against a pregnant employee, it could still be discriminatory. Therefore, you should consider all reasonable changes and be prepared to discuss and negotiate these changes to find solutions that work best for the individual.

What If a Job Is Not Safe For a Pregnant Employee?

The law entitles pregnant employees to stop or refuse work when it would expose them to severe health and safety risks. In this instance, employees can transfer to a ‘safe job’ if it is unsafe to continue their usual job because of their pregnancy. The employee needs to:

• give evidence that they can work but cannot perform their duties; and 
• indicate how long they cannot work in their ordinary role.

The employee will stay in this position until it is safe to return to their normal job or until they give birth. 

Can I Direct an Employee to Take Parental Leave?

Generally, you cannot direct your employees to take parental leave against their wishes. However, you can direct an employee to take parental leave where:

• they are within six weeks of taking parental leave; 
• a medical certificate indicates that they are not fit to perform their duties; and
• you agree that you cannot provide them with a safe job.

Can I Hire Another Employee to Replace My Pregnant Employee?

You can hire another employee to fill a vacant role because the previous employee is on parental leave. However, you must notify the new employee that their role is temporary from the outset of the hiring process. Additionally, you should note that the pregnant employee has the right to:

• return to their previous position when they return to work; and
• cancel or end the parental leave early in certain circumstances, when they may invoke their right to return to work.

Strategies for Managing Pregnancy at Work

While there are some legal obligations that you must comply with as an employer, you may want to take further steps to manage pregnancy at work more broadly. For example, you can:

• actively support pregnant employees by discussing issues that may be relevant, such as work arrangements, pregnancy-related illness and workplace safety;
• provide clear and transparent policies in your employee handbook on a pregnant employee’s rights and entitlements, as well as who they should contact for support while at work and on leave;
• provide training for all of your staff to encourage understanding and minimise bias when a pregnant employee is transferred to a “safe job” or provided with flexible working arrangements;
• check in with the employee while they are on leave to see how they are finding the level of engagement and continue to invite the employee to workplace training or functions;
• discuss their career plans and opportunities that are available when they return to work without creating any risk of a discrimination claim; and
• note when the employee returns to work to ensure a smooth transition back into the workplace.

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The benefits of implementing these strategies may include:

• increased efficiency;
• reduced absenteeism;
• reduced turnover;
• increased job satisfaction; and
• reduced risk of a claim being brought against the company.

Key Takeaways

As an employer, you have several legal obligations to support pregnant employees in the workplace. Namely, you should:

• avoid taking adverse action against employees based on their pregnancy;
• make reasonable adjustments to the employee’s work conditions to ensure it is safe in the circumstances; 
• provide the employee with their proper legal entitlements to parental leave; and
• be clear about hiring new employees to replace employees on parental leave. 

If you need help understanding your employer’s obligations regarding pregnant employees,  our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.