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Obligation To Notify Employer of Pregnancy

Pregnancy is an essentially private matter, but one that may affect an employee’s capacity to work temporarily. Although pregnancy is not a disability or illness, it often requires workplace adjustments and time away from work. Therefore, an employee should disclose their pregnancy if they have health and safety concerns, or intend to take parental leave. Still, it can be difficult for an employee to judge the right moment to notify their employer of their pregnancy. This article explains an employee’s obligations to notify their employer of a pregnancy in Australia.

Legal Obligation To Notify Employer Of Pregnancy

It is important to know that a pregnant employee has legal protections, including the right not to disclose their pregnancy to their employer. There is no requirement under the Fair Work Act 2009 (2009) for an employee to notify their employer of their pregnancy. An employer should not ask an employee if they are pregnant, even if they show physical signs. If the employer has genuine health and safety concerns for the employee, they should enquire in a sensitive and confidential manner. A manager must respect a pregnant employee’s privacy and consult them on when and how they want their pregnancy disclosed to others in the workplace.

A pregnant employee may be reluctant to notify their employer because they worry that it will adversely affect their employment. However, in Australia, an employer cannot discriminate against an employee because they are pregnant. Under the Sex Discrimination Act 1984, an employer cannot demote or dismiss an employee because of pregnancy, but they also cannot treat the employee any differently. For instance, they cannot make any assumptions about an employee’s capacity to work due to pregnancy. The impact of pregnancy on work capacity varies between individuals. An employer should not make unilateral decisions about the employee’s duties based on their own personal beliefs or opinions about a pregnant person’s capacity to work.

Variations To Work Conditions

If the employee can continue to undertake their duties with no variation, there is no positive duty of disclosure during the pregnancy. Whether a person will require accommodations at work depends on the nature of their duties and their pregnancy experience. It is up to the employee to discuss with their employer their ability to undertake normal work duties. If a manager wants to speak with Human Resources or a Health and Safety Officer about the employee’s pregnancy, they must do so in consultation with the pregnant employee. During this discussion, the employer should ideally confirm with the employee that they have a right to access flexible work arrangements and have a safe work environment during pregnancy. When an employee cannot discharge their normal duties in the same way because of pregnancy, they should be moved to an alternative role with suitable duties. For instance, if a pregnant employee would ordinarily work with chemicals or stand for long periods, they have a right to transfer to “safe work” if necessary. If there is no suitable alternative role, the pregnant employee can take paid or unpaid “no safe job leave”.

Parental Leave

Even if the employee does not require any accommodations during the pregnancy, eventually, they will need to take leave from work for the birth. Therefore, the employer will need to be notified when the employee applies for parental leave. Generally, an employee should notify their employer at least ten weeks before taking planned unpaid or paid parental leave. This allows the employer time to make appropriate workplace arrangements to benefit the employee, co-workers and company.

The employee needs to familiarise themselves with any workplace procedures and policies on parental leave. A pregnant employee should discuss their entitlement to parental leave or unpaid leave with their employer. Many companies have timelines for when an employee must apply for parental leave, particularly paid leave. At a minimum, under section 70 of the Fair Work Act, an employee who will have care of a child can access twelve months unpaid parental leave if they, or their partner (married or de facto), give birth or adopt a child.

When Should The Employee Commence Parental Leave

Generally, an employee should commence parental leave in the last six weeks of their pregnancy. This is in line with the National Employment Standards (NES). If the employee prefers, they can choose to work during this period, as long as their medical practitioner determines it is safe. The employer may require a medical clearance certificate to confirm the employee’s fitness to continue to work. If the employee does not provide this certificate from their doctor, the employer can direct the employee to commence parental leave.

It is important to understand your rights as a pregnant employee, particularly if you feel your employer has discriminated against you because of your pregnancy. Armstrong Legal’s commercial law solicitors are highly experienced in advising and representing clients on employment law and discrimination matters. If you need advice or representation, please call 1300 038 223 or use our online form to get in touch.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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