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MANAGING BEST PRACTICES: Protecting pregnant employees How to communicate risks

September 12, 2006
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In ISHN’s July and August 2006 “Managing Best Practices” columns, we discussed two challenges to protecting pregnant employees from workplace hazards in the U.S.

The first challenge is the federal government’s decision not to establish rules. Without rules, each employer is left to figure out the problem on their own.

The second challenge: When figuring out how to solve the problem, U.S. employers must look to the rapid growth of global information on this topic, mostly coming from the European region countries. As established by the U.S. Supreme Court in UAW v. Johnson Controls, and under theories of tort law and negligence, employers have a duty to fully inform employees of workplace risks to a healthy pregnancy. Without rules and with rapid growth of information, how should a U.S. employer communicate workplace pregnancy risks to an employee? This is the challenge we’ll review now.
 

Reduce fear

Talking about pregnancy issues in the workplace has been a taboo subject. First, an employer is rightfully reluctant to pry into an employee’s personal life. And federal laws, such as the 1978 Pregnancy Discrimination Act (PDA), prohibit a U.S. employer from taking any discriminatory action against an employee who is pregnant or may become pregnant. To avoid any misunderstandings on this concern, many U.S. employers avoid any discussion about pregnancy.

Pregnancy is a normal life function. And pregnant employees are not a special protected class. Pregnancy, age, religion, etc., are just types of discrimination that are prohibited in the workplace. Most employers can avoid trouble by simply treating a pregnant employee as they would any other employee that has a temporary disability.

Employers can reduce fear about pregnancy issues in the workplace by communicating all policies and procedures on the subject — insurance, maternity leave, FMLA, PDA, etc. Employees should also be aware of any procedures established by the employer to recognize, evaluate, control, and communicate workplace risks to a healthy pregnancy. Integrating pregnancy risk information into regular safety and health training — chemical hazard communication, hearing conservation, ergonomics, etc., will also help reduce fears.

Involving employees in decision-making will help with communications. Solicit questions from employees about how workplace pregnancy risks should be handled. Generic workplace pregnancy risks can and should be freely discussed. Any specific concerns by an employee must be held in confidence by the employer.
 

Pro-choice

This is where things get sticky: An employer must inform an employee of workplace risks to pregnancy, but it is up to the employee whether or not to accept these risks. The following is an example of what can go wrong. A student in the AIHce Professional Development Course, “Implementing Reproductive and Developmental Health Programs,” informed the class that after he informed a pregnant employee that her job as a painter posed a risk to her unborn child, the employee came back a few days later and said, “There, I had an abortion; I guess I can keep my job!”

Whether the employee sought the advice of her personal physician, as she should have, before choosing to abort is not known. It is also not known how the risk information was framed to the employee and whether all available options for the employee were thoroughly explained. It is quite possible that the employee searched health information on the Internet, as many people are doing today, and came to her own conclusions that to abort was better than to risk delivering a baby with severe birth defects.
 

What transpired?

The following is purely hypothetical, but reasonable to expect, of what may have transpired above. Assume the employee was told that the paint contained methyl ethyl ketone, and her exposure to the MEK was at 100 parts per million (PPM). Assume the employer only told the employee that review of the paint material safety data sheet (MSDS) indicated that “MEK may cause birth defects” and she’d have to determine for herself if this exposure risk was acceptable. Also assume, which is reasonable, that the employee was told that there were no other jobs she could be transferred to and keep her same rate of pay.

Assume the employee runs a Google search for “MEK birth defects,” which is a reasonable search term. The first site that actually comes up (not hypothetical) is a lawyer’s Web page containing the article “In Utero Brain Damage Caused by Toxic Solvent Exposure.”

The article contains the following information, “As a result, if a pregnant woman is routinely breathing air containing significantly more than .3 PPM of MEK, her fetus will be receiving a fetotoxic dose of MEK.” And the next search item that actually comes up is a MSDS for paint (prepared August 2005) which indeed states that “MEK may cause birth defects” but gives us no other pregnancy risk information. How an employee might react to the above information is anyone’s guess, but if they found that 0.3 PPM of MEK is “fetotoxic” then they may reasonably conclude that 100 PPM is significantly over this amount, which may surely lead to birth defects.
 

European guides

Standard U.S. data — summary information that’s usually found with an OSHA PEL, NIOSH REL, or ACGIH® TLV® — won’t be much help in determining the risk MEK poses to an embryo or fetus. But look what happens when European guides are used.

The International Chemical Safety Card for MEK identifies the substance as having a Federal Republic of Germany’s Maximum Concentration Values in the Workplace (MAK) at 200 PPM, with a MAK pregnancy classification in group C. The definition for pregnancy classification C chemicals is, “There is no reason to fear a risk of damage to the developing embryo or fetus when MAK and BAT (Biological Tolerance Value for Working Materials) values are observed.”

In our hypothetical case, if the employer used the ICSC for MEK and explained the MAK pregnancy classifications, both of which are scientifically valid forms of workplace information, the employee may have legitimately concluded that her exposure at 100 PPM to MEK is one-half the MAK value and there “is no reason to fear risk of damage to the developing embryo or fetus.”
 

Conclusion

Due to the U.S.’s generally restrictive maternity leave laws and policies, as compared to other countries, pregnant employees in the U.S. work longer into their pregnancy than pregnant employees in almost all of the other industrialized nations. This increases exposure risk and provides an additional challenge to protecting the pregnant employee in the U.S. workforce.

Occupational safety and health pros in the U.S. are among the world’s best-trained in recognizing workplace hazards. Effective evaluation and communication of workplace pregnancy risks by these pros requires that they apply and interpret global health information. Cooperation among the occupational safety and health pro, the employee and her personal physician will help contribute to a healthy pregnancy leading to better health among the next generation of children.

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