The introduction of miscarriage leave for parents – What does this mean for your business?

Miscarriage is a topic that is often not discussed openly, particularly in the workplace. However, with an estimated 1 in 4 pregnancies ending in miscarriage, whether you are a small business with less than 10 employees, or a large corporation with hundreds of staff and multiple offices, chances are miscarriage has unfortunately had an impact on some of your employees.

Until the recent amendments to the Fair Work Act 2009 which now afford parents the opportunity to access compassionate leave following a miscarriage, many parents utilised carers leave, or sick leave entitlements to take the time needed to recover, and whilst these changes do now recognise the tragedy related to pregnancy loss, many advocates are still not satisfied with the 2 days afforded to employees, suggesting that the changes do not go far enough in protecting the health and well being of employees who have experienced a loss, with many advocates pushing for a 14 day leave entitlement.

We take a look at the recent amendments to the Fair Work Act, and how the amendments regarding miscarriage leave will affect you as an employer.

Miscarriage leave – Background to the reforms

Before reviewing the changes to the Fair Work Act it is important to consider the background to these recent changes which were spearheaded by several women’s health and advocacy support groups, including The Pink Elephant Support Network.

The Pink Elephant Support Network, or simply Pink Elephant as the organisation is commonly referred, is a non-for-profit organisation that was established solely for the purpose of assisting and supporting women and their families after the loss of a pregnancy, which is achieved through the provision of information, resources and a peer-support network of other members who have also experienced loss. With such a large number of pregnancies ending in loss, and after identifying the deficiencies in Australia’s leave entitlements related to miscarriage, Pink Elephant commenced a “Leave For Loss” campaign, advocating for changes to workplace legislation, specifically the inclusion of leave for miscarriage.

After three years of campaigning, landmark changes to the Fair Work Act were made in September 2021, with the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2020, passed, which now includes miscarriage as a reason for an individual to access 2 days of compassionate leave following a miscarriage.

The new legislation

The new legislation, which applies to the awards covered by the National Employment Standards, is applicable to full-time and part-time employees who are able to take 2 days of paid compassionate leave, also known as bereavement leave following a miscarriage, in addition to casual employees, who are able to access the leave, but will not be paid for their absence.

Access to compassionate leave in this circumstance is not only available to women who have suffered a miscarriage, but also to the woman’s spouse or de facto partner.

Just as with any other leave taken by an employee, communication with the employer is key, with notice provided as soon as possible, which can include after the leave has already commenced. As an employer, it is also completely acceptable to ask for evidence related to the reasoning behind the leave. In the case of a miscarriage a medical certificate would be considered appropriate and sufficient evidence. Should an employee not provide evidence on request of the employer, then an employer is entitled not to grant the leave.

Why compassionate leave for miscarriage is important in the workplace

The inclusion of miscarriage as a reason to access compassionate leave, which previously had only been able to be utilised following a death of a member of an individuals immediate family or household, which included the stillbirth of a baby, enables employees who have suffered a pregnancy loss to have their loss validated and to take the time necessary to grieve.

Whilst legislative changes have forced the inclusion of miscarriage as a reason for access to compassionate leave upon workplaces who had workplace agreements in place based upon the National Employment Standards, many employers had already seen the need for this leave and had made changes to their own workplace agreements to afford parents this leave entitlement. Organisations such as Price Waterhouse Coopers, Minter Ellison and QBE were some of the first organisations to include leave entitlements following a miscarriage for their employees, signing onto Pink Elephant’s Fertility in the Workplace Program, prior to September 2021.

What does your business need to do?

Naturally with such a landmark change to the Fair Work Act, many employers have been confused about what exactly their business needs to do to ensure miscarriage leave is included in their workplace agreements. However, fear not, for employers do not need to make any drastic amendments to employment agreements to specifically include miscarriage leave, due to the fact that this inclusion has caused a legislative change. The change in legislation takes care of it for you.

However, it is also important to consider the impact that these changes have on your workplace policies and procedures. From a quality assurance perspective, if it has been some time since your business has reviewed and updated your leave policies, now is the perfect time, with working incorporating miscarriage leave as a reason to access compassionate or bereavement leave an important addition. Naturally, this should always include seeking relevant legal advice to ensure your policies are compliant.

The amendments to the Fair Work Act enabling parents to access compassionate leave following a miscarriage is certainly a positive for both employees and employers alike. For employees the sense of validation after experiencing heartbreak and having sufficient time to grieve their loss, supported by their spouse or partner is certainly a much-needed change. Whereas for employers the inclusion affords an opportunity to also offer support and to have a greater awareness of the personal issues that can affect their employees, leading to a workplace of greater trust and community.

The team at DreamStoneHR are ready to help, reach out to us today on (02) 8320 9320 or

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