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Can a pregnant worker work up until her due date?

Q: We have a worker in an office customer service position, who would like to work right up until she gives birth. Most pregnant workers usually stop working between 2 months to 2 weeks before their due date. The worker has told us that she has received medical advice stating there is no medical issue and that she can work right up to the date she goes into labour.

I have researched the law regarding maternity leave and understand that while the pregnant worker is employed, the employer owes a duty of care to the unborn child in addition to the worker. I can’t find anything relating to when a pregnant employee should stop working prior to giving birth.

Keeping both the worker and the unborn child’s best health in mind, is this legally allowed?

A: This is an area where caution must be exercised, given the protections pregnant women have against discrimination.

However, as an employer, you do have a right under section 73 of the Fair Work Act 2009 (Cth) to request a medical certificate if the worker wishes to work during the final 6-week period before the expected due date.

Section 73 sets out what the medical certificate needs to address, including:

  • whether the worker is fit to work in that period; and
  • if she is, whether it is inadvisable for the worker to continue to work in her present position because of risks in her pregnancy or hazards in the job (the latter is unlikely to be applicable in the role you have mentioned).

You can require the worker to go on unpaid leave as soon as practicable if the medical certificate:

  • is not provided within 7 days of the request;
  • says she is unfit to work; or
  • states it is not advisable for her to continue working in her present position.

Please note: The answer is correct at the time of publishing. Be aware that laws may change over time. Refer to Discrimination for current advice.

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