Miscarriage Leave in Victoria: Employer Obligations and Support

Supporting a team member through pregnancy loss is both a human and a legal responsibility. As a Victorian small business, you’ll want to respond with empathy while staying compliant with Fair Work and privacy obligations.

The good news is the National Employment Standards (NES) set clear minimums for miscarriage leave. With the right policies and processes in place, you can give staff the space they need, reduce the risk of disputes and keep your operations running smoothly.

In this guide, we break down what “miscarriage leave” means for Victorian employers, who’s eligible, how much leave is available, what evidence you can request, and the practical steps to embed best practice in your business.

What Counts As Miscarriage Leave In Victoria?

There isn’t a separate “miscarriage leave” category in Victoria’s state laws - it’s covered nationally under the Fair Work Act through existing NES entitlements that apply to most businesses in Victoria.

Two key NES entitlements are relevant when a pregnancy ends before a living child is born:

• Compassionate leave (bereavement leave): An employee is entitled to 2 days of compassionate leave per occasion if they, or their spouse/de facto partner, has a miscarriage. Full-time and part-time employees are paid; casuals are unpaid.
• Unpaid special maternity leave: If the employee’s pregnancy ends after 12 weeks because of miscarriage or termination, the pregnant employee can take unpaid special maternity leave. This is separate from compassionate leave and can be taken as needed, with evidence.

These entitlements sit alongside other leave options that may also be appropriate depending on the circumstances, such as paid personal/carer’s leave (for illness or injury) and carer’s leave (to support a spouse or household member during an illness or emergency).

If a pregnancy ends after 20 weeks (stillbirth), different parental leave rules can apply. However, this guide focuses on miscarriage (generally before 20 weeks) and how you, as an employer in Victoria, should respond.

Who Is Eligible And How Much Leave Must You Provide?

Compassionate Leave (2 Days Per Occasion)

Compassionate leave for miscarriage is available to:

• The employee who experiences the miscarriage; and
• The employee if their spouse or de facto partner experiences a miscarriage.

Key points for employers:

• Amount: 2 days per occasion. It can be taken in a single 2-day block or in separate periods (including part-days) as agreed.
• Pay: Full-time/part-time are paid at base rate for hours they would have worked; casuals are unpaid.
• Notice: The employee should let you know as soon as practicable and tell you how long they expect to be away.
• Evidence: You can ask for reasonable evidence (for example, a medical certificate) that would satisfy a reasonable person.

Unpaid Special Maternity Leave (After 12 Weeks’ Pregnancy)

If the pregnancy of your employee ends after 12 weeks (otherwise than by the birth of a living child), they may take unpaid special maternity leave. Practical notes:

• Duration: For the period the employee is unfit for work (based on medical evidence).
• Evidence: You can request a medical certificate stating the relevant facts and period of unfitness for work.
• Service: Special maternity leave does not break continuity of service.
• Separate from parental leave: It is distinct from unpaid parental leave entitlements.

Partners of the pregnant employee aren’t entitled to special maternity leave, but they can usually access compassionate leave and may also use paid personal/carer’s leave to provide care where the criteria are met.

Personal/Carer’s Leave And Flexible Options

Employees who are unwell (physically or mentally) may also access paid personal leave if they have accrued entitlements, and carer’s leave to support an immediate family or household member during an illness or emergency. Where appropriate, you can agree to short-term arrangements such as part-days, altered rosters or working from home to support recovery and continuity.

If a team member has exhausted their paid entitlements, you can consider unpaid leave on a discretionary basis to support them through a difficult period.

What Evidence Can You Request - And How Should You Handle It?

Under the NES, you can ask for “reasonable evidence” to approve compassionate leave and special maternity leave. In practice, this often means a brief medical certificate or note confirming a miscarriage and the need for time away from work (without graphic or sensitive detail).

Best-practice tips for Victorian employers:

• Keep it proportionate: Only request what’s reasonably necessary to assess the leave request and pay entitlements. Avoid asking for details that are not required to make a decision.
• Protect privacy: Treat any documentation as sensitive health information. Limit access to those who need to know and store it securely in line with your internal workplace policies.
• Be flexible about form: Accept different forms of reasonable evidence. If a certificate is not immediately available, consider provisional leave pending evidence.
• Clear communication: Provide a single, trusted point of contact (e.g. HR lead or business owner) so the employee doesn’t have to repeat details.

You can also, in appropriate cases, ask for a fit-for-work note before the employee returns to normal duties - especially if the employee has been away for a period or requests adjustments. If you’re unsure when this is appropriate, this guide on medical clearance to return to work explains what’s reasonable under Australian employment law.

Practical Steps To Support Staff And Stay Compliant

1) Add A Clear Pregnancy Loss/Miscarriage Clause To Your Leave Policy

Make it easy for employees and managers to understand the process:

• Reference NES compassionate leave (2 days) for miscarriage and who can access it.
• Explain special maternity leave for pregnancy ending after 12 weeks (unpaid, evidence-based).
• Outline what evidence you may request, how to submit it, and privacy safeguards.
• Include options for personal/carer’s leave, flexible work and discretionary unpaid leave.

If you already have a Parental Leave Policy, add a short section on miscarriage and special maternity leave so everything sits in one place and staff are not left guessing.

2) Embed The Process In Employment Contracts And Your Staff Handbook

Employment agreements should align with the NES and your internal policies. Make sure your Employment Contract for permanent staff and your Employment Contract for casuals both reflect how leave is requested, paid and recorded, and point employees to the relevant policies.

Your staff handbook or workplace policies should also explain confidentiality expectations for managers handling sensitive matters and who is authorised to access medical information.

3) Train Managers To Respond With Empathy And Accuracy

Frontline managers often receive the first call. Give them simple guidance on what to say (and what not to say), how to approve leave quickly, and when to escalate a query.

Training should cover Fair Work entitlements, record-keeping, privacy, and mental health support options. It’s also important to remind managers of your general duty to support psychological safety - more on that below.

4) Consider Short-Term Adjustments And Check-Ins

Recovery from miscarriage can involve both physical and mental health impacts. Where reasonable, consider temporary changes such as lighter duties, reduced hours, remote work, or altered rosters. Keep check-ins short and respectful, and let the employee set the pace.

If you’re navigating complex circumstances (e.g. repeated absences, extended leave, or performance concerns tied to health), align your approach with your obligations regarding employee mental health and seek advice early.

5) Keep Accurate Payroll And Leave Records

Record compassionate leave correctly (paid for permanent staff; unpaid for casuals) and track any special maternity leave as unpaid leave with appropriate documentation on file.

If an employee has run out of personal leave but needs more time, setting expectations around unpaid leave and review dates can help balance compassion with operational needs.

Victorian Employers: Discrimination, Safety And Confidentiality Considerations

Although leave entitlements are set by the NES, Victorian businesses should also be mindful of broader obligations that intersect with miscarriage and pregnancy loss.

Anti-Discrimination

In Victoria, it is unlawful to discriminate against an employee because of pregnancy, potential pregnancy or family responsibilities. Adverse action (for example, reducing hours or sidelining someone) because they took lawful leave could also breach the Fair Work Act. Decisions about performance and rostering should be based on objective criteria and properly documented.

Work Health And Safety

You have a duty to provide a safe workplace. That includes managing psychosocial hazards and taking reasonable steps to support an employee who is returning to work after a miscarriage. Practical steps might include adjustments to work, private spaces, and ensuring the employee is not pressured to share personal details if they don’t wish to.

Privacy And Sensitive Information

Health information is inherently sensitive. Limit the number of people who know the details, keep records secure, and avoid emailing medical certificates widely. Your policies should explain how health information is handled, who can access it, and retention/deletion practices. This can sit neatly within your broader workplace policy framework.

Frequently Asked Employer Questions (Victoria)

Can we allow more than 2 days of paid leave?

Yes. The NES sets minimums only. Many employers allow additional paid or unpaid leave as a matter of policy or discretion, especially where the circumstances warrant it. If you choose to offer more, document it clearly and apply it consistently to avoid creating unintended entitlements or inequities.

Do we need medical evidence for compassionate leave?

You’re entitled to request reasonable evidence that would satisfy a reasonable person. In practice, keep requests proportionate. Accept a brief certificate or note confirming the need for leave. If evidence will take time to obtain, you can provisionally approve leave while the employee organises it.

What if the employee is on probation?

NES entitlements apply regardless of probation. You should still approve compassionate leave for miscarriage and consider any medical advice regarding fitness for duties. If you’re navigating performance or attendance concerns during probation, factor in these legal entitlements and check this guidance on taking leave during probation so your decisions remain fair and compliant.

Can we ask for a fit note before the employee returns?

Where there has been a period of absence for health reasons, it’s reasonable to request confirmation that the employee is fit for work or fit with adjustments. Make the request sensitively and in line with your policies - and see this overview on requesting medical clearance for more detail.

How should we communicate with the team?

Only share information the employee has consented to share. You can notify colleagues about staffing changes (for example, someone is on leave) without disclosing the reason. If the employee wants colleagues informed, agree on wording together and designate who will communicate it.

Recommended Documents And Policies To Put In Place

Having the right documents in place makes it easier to support staff and stay compliant when sensitive situations arise.

• Parental Leave Policy: Include a section on miscarriage and special maternity leave so employees and managers have a clear, single source of truth. You can tailor a Parental Leave Policy to your business size and industry.
• Employment Contracts (Permanent and Casual): Align your contracts with the NES and your policies, and set out notice and evidence requirements in plain English. Use a current Employment Contract for permanent roles and a Casual Employment Contract for casual engagements.
• Workplace Policies and Staff Handbook: Centralise leave processes, privacy, manager escalation points and EAP contacts. Your workplace policy framework can also cover flexible work requests and safe return-to-work practices.
• Fit-For-Work/Return-To-Work Procedure: A short protocol for when and how to request medical clearance, what adjustments are available, and who approves them, aligned with guidance on medical clearance to return.
• Mental Health and Wellbeing Guidance: A practical guide for managers on supportive conversations, referrals, and your obligations regarding employee mental health.

Not every small business will need all of these on day one, but having at least a policy clause and up-to-date contracts in place will save time when the unexpected happens.

Implementation Checklist For Small Businesses

• Review and update your leave policy to reference compassionate leave for miscarriage and special maternity leave.
• Ensure your permanent and casual contract templates reflect NES entitlements and align with your policies.
• Create a short manager script and escalation process for sensitive leave requests.
• Set up a private, secure method of collecting and storing medical evidence.
• Note payroll codes for paid compassionate leave and unpaid special maternity leave to keep records accurate.
• Offer short-term flexibility where reasonable, and schedule a check-in plan the employee is comfortable with.
• Prepare a return-to-work process that includes adjustments and, where appropriate, a fit note request in line with medical clearance guidance.
• Have a plan for when an employee’s paid leave is exhausted, including options for unpaid leave.

Key Takeaways

• In Victoria, miscarriage leave is covered by national entitlements: 2 days compassionate leave per occasion and unpaid special maternity leave if the pregnancy ends after 12 weeks.
• Partners are entitled to compassionate leave; the pregnant employee may also access special maternity leave with reasonable medical evidence.
• Handle requests quickly, request only proportionate evidence, and protect privacy through clear workplace policies and limited access to records.
• Support recovery with short-term adjustments and fair processes that meet your obligations around employee mental health and safety.
• Keep contracts, your Parental Leave Policy and manager guidance up to date so you can respond compassionately and consistently.
• If paid leave is exhausted, consider structured unpaid leave and a clear return-to-work plan, including medical clearance where appropriate.

If you’d like a consultation on setting up miscarriage leave processes and policies for your Victorian small business, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.