In recent years American courts, including the U.S. Supreme Court, have made rulings aimed at removing barriers in employment for women who are pregnant. The question then is, how to protect them from workplace dangers without being seen as engaging in illegal discrimination?
One issue to recognize is that while employers have a general duty to protect their employees from a condition known to cause harm, pregnant women may face unique risks and may be more susceptible to a range of serious workplace hazards, note attorneys James L. Curtis, Erin Dougherty Foley, Adam Young and Megan Toth from the law firm of Seyfarth Shaw.
The Occupational Safety and Health Administration (OSHA) declares that “exposure to reproductive hazards in the workplace is an increasing health concern.” To learn about what some of these points of concern are, consult National Institute for Occupational Safety and Health (NIOSH) information resources concerning pregnancy and reproductive health hazards.
Ionizing radiation and lead, for example, are known hazards to pregnant women and reproductive health. In addition, a fetus might be more vulnerable to certain chemicals, particularly in early stages of pregnancy when the baby’s organs are developing. Further, changes in a pregnant employee’s immune system, lung capacity and even ligaments can increase their risk of injury or illness due to certain workplace hazards.
“Employers must protect their employees (including more susceptible pregnant employees) and prevent exposures to these known hazards,” the Seyfarth Shaw attorneys say, but must do so in a manner that does not endanger these women’s livelihoods as well.
“This does not mean that employers should be reactive and involuntarily remove pregnant women from positions or duties in which they may be exposed to hazards, either to themselves or their developing baby, without the employee’s request and/or agreement,” the attorneys stress.
Federal and state laws protect pregnant employees in the workplace, including Title VII to the Civil Rights Act of 1964, which prohibits discrimination based on sex, and the federal Pregnancy Discrimination Act, which prohibits discrimination against employees on the basis of pregnancy, childbirth or related medical conditions.
The Americans with Disability Act (ADA) and state pregnancy accommodation laws prohibit discrimination based on qualifying pregnancy-related disabilities, and, under certain circumstances, prohibit employers from requiring employees to take accommodations to which they do not agree (such as a forced reassignment or relinquishment in job duties).
What Is Discrimination?
“To the extent that an employer changes a job assignment or removes a woman from a desirable position because she is pregnant or may become pregnant, without a specific accommodation request, and in some cases, agreement from the employee, the employer could face a claim of gender and/or pregnancy discrimination,” the attorneys warn.
The need to take action is clear regarding certain chemical and radiation hazards. In situations where there is no medically-documented basis that exposure might injure a fetus, a pregnant or potentially pregnant employee’s perceived susceptibility to a hazard probably would not be viewed as a legitimate reason to involuntarily demote, take away opportunities or discharge her.
Employers can still offer pregnant workers the opportunity to avoid exposure. It simply means job assignment and removal of desirable duty should not be assumed or forced upon a worker because she is pregnant.
However, some potential chemical and radiation exposures may force an employer to make involuntary reassignments, the Seyfarth Shaw attorneys explain. For example, low levels of lead or radiation may be safe for most employees but may not be for women who are pregnant or may become pregnant. Employers should inform employees about these hazards and their potential effects on reproductive and fetal health, and request that they notify the employer if they become pregnant.
In some cases where there is a potential chemical or radiation hazard that might injure a fetus, an employer may need to propose a reassignment and overrule an employee if she chooses to reject the accommodation. Specific OSHA regulations address some of these hazards with regard to pregnant women and mandate actions by the employer, including reproductive hazards and the rules for dealing with ionizing radiation.
Employers also must consider safety equipment changes to protect and accommodate pregnant employees. Personal protective equipment, such as a harness for a personal fall arrest system, may no longer fit a pregnant employee or may have the potential to cause unnecessary harm to a worker or her developing baby. Similarly, gloves, sleeves, helmets or specialized boots may need to be replaced by the employer, assisted by the employee to ensure a proper fit.
Respirators present a trickier question, the Seyfarth Shaw attorneys observe. “If an employee passed a medical evaluation and fit test before becoming pregnant, she may present different medical issues with using a respirator and it may no longer fit properly. Employers should contact their medical professional to help coordinate any respirator use by pregnant employees.”
NIOSH recommends that a pregnant employee discuss possible job hazards with her employer and her doctor as soon as possible after learning about the pregnancy, adjust their job duties temporarily or take extra steps to protect themselves.
Although employees should be expected to notify employers of their need for accommodations, there are no “magic words” that trigger an employer’s obligation under the ADA, the attorneys note. Managers need to be well trained to identify and properly inquire when a pregnancy-related accommodation may be needed, and how to engage appropriately in the interactive process under the law.
For example, if an employer is concerned about exposure for a pregnant worker, she may be asked whether she needs any accommodations. If she says yes, then the employer should engage in a robust dialogue with the employee to determine what reasonable accommodations may be agreeable, the attorneys advise.
If the employee can no longer perform the essential functions of their position, and there are no reasonable accommodations available, reassignment to an open position—or if no open positions, a leave of absence—may be the only reasonable accommodations available. However, if other accommodations are available, you can’t force her to take another position or leave.
Pregnancy is a blessed miracle and a beautiful event—not to mention that it helps produce future taxpayers and contributors to the Social Security system. Know the law and make sure to take all the necessary steps for protecting your pregnant employees, to protect them and those future little taxpayers.