We have a process worker who is 5 months pregnant. She is keen to keep working as long as possible but we are concerned about the physical nature of her job. What are our obligations and responsibilities in this situation?
If an employer has a concern for the health and safety of an employee during her pregnancy, it is best to discuss the concern with the employee and ask for her opinion as to her ability to perform her role safely whilst pregnant.
If the employer is not satisfied that the employee can safely perform her role whilst pregnant, the employer may request that the employee provide a medical certificate regarding the employee’s ability to perform the role whilst pregnant.
An employer should only request a medical certificate if there are reasonable grounds for doing so (for example, if the job involves particular risk factors) otherwise, this may give rise to a potential discrimination complaint.
The employer, however, is obliged to provide a safe workplace to all employees at all times. Organisations must ensure that duty of care responsibilities are met when managing pregnant (or potentially pregnant) employees and that a risk assessment is undertaken.
A risk assessment is simply a thorough examination of the potential harm which could be caused through any work activity a pregnant employee (or potentially pregnant employee) may perform. Most of the time such risk assessments are relevant to the entire workforce and not just pregnant employees.
Once a risk assessment is performed, employers can then make sure that appropriate control measures are present or can then implement strategies to remove any risks that have been identified and fully assessed. Risks are not just about physical problems but can be linked to stress and the working environment. Examples include:
Unless there is an identified risk or a pregnant employee makes a request to transfer to a safe job (and/or a medical certificate supporting a change in duties) then no working restrictions should be placed on a pregnant employee.
If the employee provides evidence that the employee is fit for work but that it is inadvisable for the employee to continue in her current position (either due to illness or risks arising out of her pregnancy, or because of hazards connected with that position), the employer is required to assess whether there is an appropriate safe job within the business.
If there is an appropriate safe job available, the employer must transfer the employee to that position for the duration of the risk period. If no appropriate safe job is available, the employee will be entitled to proceed onto ‘no safe job’ leave (discussed below).
The ‘risk period’ may amount to the whole of the pregnancy or only part of the pregnancy. For example, an employee’s doctor may advise her that she should not stand for prolonged periods of time during the first trimester of her pregnancy due to unique risks associated with her pregnancy. In this case the risk period would be the first trimester only. In other instances, the full length of the pregnancy may represent the risk period – for example, where the employee’s role involves working with potentially hazardous chemicals.
An appropriate safe job is a safe job that has the same ordinary hours of work as the employee’s present position or a different number of ordinary hours agreed to by the employee.
In circumstances where there is an appropriate safe job available and the employee is transferred for the risk period to the safe job, the employee must be paid her full rate of pay (for the position she occupied before the transfer) for the hours that she works in the risk period. Full rate of pay includes incentive-based payments and bonuses; loadings; monetary allowances; overtime or penalty rates and any other separately identifiable amounts.
If there is no appropriate safe job for the pregnant employee and the employee is entitled to unpaid parental leave under the National Employment Standards (and the employee has complied with the notice and evidence requirements for taking unpaid parental leave), the employee will be entitled to paid ‘no safe job’ leave for the risk period.
This form of paid leave is separate and distinct from personal leave. The employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the risk period. The base rate of pay does not include incentive-based payments and bonuses; loadings; monetary allowances; overtime or penalty rates.
If the pregnant employee is still on paid ‘no safe job’ leave during the 6 week period before the expected date of birth of the child, the employer may ask the employee to provide a medical certificate stating whether the employee is fit for work.
If the employee does not provide a medical certificate to the employer within 7 days of the request or if, within 7 days of the request, the employee provides a medical certificate which states that the employee is not fit for work, the employer may require the employee to start her period of unpaid parental leave as soon as practicable. When the period of unpaid parental leave beings, the paid ‘no safe job’ leave period ends.
From 1 July 2013, amendments to the Fair Work Act 2009 came into effect which provide that a pregnant employee who is not entitled to unpaid parental leave (for example if she has less than 12 months continuous service or is an irregular casual employee) will be entitled to unpaid ‘no safe job’ leave for the risk period where there is no appropriate safe job to transfer her to.
If a pregnant employee’s doctor advises that the employee is not fit for work at all during part of or all of the pregnancy, then the employee will be entitled to unpaid special maternity leave during that period. If the employee has personal leave available then she may take that leave instead of taking unpaid special maternity leave.
Unpaid special maternity leave is only available to employees who have an entitlement to unpaid parental leave. As such, employees with less than 12 months’ continuous service or irregular casuals will not be entitled to unpaid special maternity leave.
Unpaid special maternity leave will not affect the employee’s amount of unpaid parental leave. That is, the employee’s entitlement to 12 months unpaid parental leave will not be reduced by any period of unpaid special maternity leave.
Where a pregnant employee wishes to continue working during the 6 week period before the expected date of birth of the child, the employer may ask the employee to provide a medical certificate stating whether the employee is fit for work and, if the employee is fit for work, whether it is advisable for the employee to continue in her current position during that period.
If the employee is not fit for work or if it is inadvisable for the employee to continue in her current position, the employer can require the employee to commence her period of unpaid parental leave as soon as practicable. If the employee fails to provide a medical certificate within 7 days of the request being made by the employer, the employer can then also require the employee to commence her period of unpaid parental leave as soon as practicable.
Clinton is the Publications Manager at Ai Group. He is responsible for a number of key services including Annotated Modern Awards, Workplace Relations Handbooks and the management of Ai Group’s HR and Health & Safety Resource Centres. Clinton has a Masters in Employment Relations and previously held advisory roles with the Workplace Authority and Fair Work Ombudsman.
