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When do you have to tell your boss you are pregnant?

in Workplace Law by Kathryn Presdee on

In today’s modern world, it is a great shame that mothers and mothers-to-be continue to experience discrimination and inequality in the workplace.  This is despite the fact there are laws in place to protect women from these very things.

The Australian Human Rights Commission recently released a report into pregnancy and return to work discrimination. It found that Australian workplaces still overwhelmingly view working while pregnant as a privilege, not a right. It found that one in two (49%) mothers and over a quarter (27%) of fathers or partners surveyed reported experiencing discrimination in the workplace during pregnancy, parental leave and return to work.

Unfortunately, the complaints received by the AHRC and Fair Work Australia show that discrimination continues to be a problem. It comes as no surprise then that some women will not tell their boss or work colleagues until it is glaringly obvious that they are pregnant.

Read more: Here are five things you should know if you're returning from parental leave.

So just when do you have to tell your boss you are pregnant?

The short answer is there is no general legal requirement to disclose your pregnancy to your employer at a particular time.  The best time to tell your employer depends on your own circumstances and also based on medical advice.

While there is no deadline in the Fair Work Act to apply for unpaid parental leave, you should check to see if you have to give your employer notice to access any form of paid leave, including paid maternity leave.  It is common to have to give your employer at least ten weeks’ prior notice, particularly if you want to take any form of paid leave.

Most parental leave arrangements, including unpaid parental leave under the National Employment Standard (NES), expect that you will commence parental leave six weeks prior to your due date, which essentially means that if you are going to take parental leave you will need to tell your employer about your pregnancy not later than at the end of your second trimester.

You can still work during the last six weeks of your pregnancy if you wish to, but your employer may require you to provide a certificate from your doctor confirming that you are fit to continue working, taking into account your pregnancy and the nature of your position.  If in doubt, discuss with your doctor or midwife what you do at work and take their advice on what you should and shouldn’t be doing at work.  It is always best to discuss this with your medical practitioner to ensure that you and your baby are not put at risk in the work place.

If you don’t have enough paid leave to cover this time, your employer may direct you to commence unpaid leave.

For those women who work in roles that may affect their ability to do their jobs while pregnant, such as working with chemicals or standing for long periods of time, a medical certificate that shows they are unable to do their normal duties can allow a woman to be transferred to “safe work”. 

It is extremely important that employers do not make assumptions about a pregnant woman’s ability to do her job as it could be considered discrimination. 

One of the outcomes of the national review is to identify leading practices and strategies for addressing the current challenges employers face in meeting the needs of pregnant women and employees returning to work from parental leave.

Some of the submissions that have been made are startling and a stark reminder that employers need to ensure they adequately cater for the needs of pregnant women and then also, when they return to work. 

We cannot afford to alienate mothers from the workforce. 

Kathryn Presdee
Industrial and Employment Law, Lawyer
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