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Is it safe for pregnant workers?

You can help to reasonably reduce hazards

June 6, 2012
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The EEOC received 53,865 charges alleging pregnancy discrimination over the past ten fiscal years — more than a 35% increase in charges from the previous ten years. This number underestimates the true scope of the problem. Research published in April 2011 suggests that almost one-quarter of all pregnant workers in the U.S. experience punishment/extreme reaction (negative) at work.

The following stories are commonplace:

Retail sales associate, Heather Wiseman, told her employer, Wal-Mart, that she needed to drink bottled water during work to help address urinary and bladder infections associated with her pregnancy. In response, Wal-Mart fired Heather.

 While pregnant and working as a nursing home activity director for Beverly Healthcare, Victoria Serednyj, needed help only a few minutes each day to move furniture. Although Victoria’s fellow co-workers routinely helped each other with work, they didn’t want to help Victoria. To solve the problem, Beverly Healthcare fired Ms. Serednyj.

When Heather Spees, a welder, learned she was pregnant, she provided her employer, James Marine, with a letter from her obstetrician that cleared her for work without restrictions. James Marine’s Safety Manager, Tom Freeman, told Heather the letter was not acceptable and that welding was “man’s work.”  Mr. Freeman concluded it was unsafe for Heather to continue welding. Although Heather wanted to stay on the job as a welder, she was forced to take a night-duty tool-room assignment that adversely affected her ability to raise her daughter as a single mother. Not long after being assigned to the tool-room, Heather’s foreman, Mr. Gunder, told Heather she “was being fired for being pregnant.”

Peggy Young’s doctor told her not to lift more than 20 pounds while pregnant. Peggy asked her employer, United Parcel Service, for a light-duty assignment. UPS denied Peggy’s request. Peggy was forced to choose between needed income and possible adverse health consequences. Peggy took unpaid leave and lost her medical coverage until after she gave birth and was able to return back to work with no restrictions.

Patricia Leahy worked for the Gap. When she gave her supervisors a doctor’s note saying that she should avoid heavy lifting and climbing ladders the month and a half before she gave birth, the Gap fired Patricia.

Court decisions

In each case above, a court found that the employer could legally fire the worker. Court decisions on pregnancy discrimination defy common logic. Donnicia Venters, for example, sued Huston Funding after they fired her when she requested to use a back room at work to pump breast milk for her newborn child. In February 2012, a district judge ruled that Donnicia cannot claim pregnancy discrimination because, “lactation is not pregnancy, childbirth, or a related medical condition.” Go figure.

In hearings before the EEOC in February 2012, several presenters argued that laws to protect and support pregnant workers including the Family and Medical Leave Act, Pregnancy Discrimination Act, ADA Amendments Act, and new provisions in the Affordable Care Act are being badly misinterpreted by lower courts. Appeals courts are stepping in to review, and where needed reverse, improper judicial decisions. 

In 2011, an appeals court reversed the ruling against Heather Spees, Peggy Young’s case was filed with the appeals court March 2012, and, Donnicia Venters case is ripe for an appeal.

Politics

Views on pregnancy discrimination appear to be lining up on political sides and have picked up steam in this presidential election season. The U.S. Supreme Court recently heard arguments in the application of FMLA, with an emphasis on its relation to pregnancy discrimination. A ruling is expected this summer. 

Among the Amici (persons or organizations that are not party to the case but are permitted to advise the court in some matter of law) are 45 current members of Congress and two former members of Congress (all democrats) who are “committed to securing equal opportunity for women in the workplace.”  

The U.S. Supreme Court ruling will be interesting given the new makeup of the court. Justices Elena Kagan and Sonia Sotomayor asked poignant questions about how employers may view a pregnant worker.

The Pregnant Workers Fairness Act was introduced to Congress on May 8.

See link http://www.nwlc.org/sites/default/files/pdfs/pregnant_workers_fairness_act_sign-on_letter.pdf. The Act addresses a “pubic health necessity” that supports “family economic security.” 70+ legislative co-sponsors (all Dems) and 120+ organizations have given formal support, so far. Chatter on the Internet indicates that momentum will build but passage may be tough without Republican support. This is another example of which political side wants the women vote. I see a very significant role for EHS pros if the Act becomes law.

Relevance to EHS pros

Regardless of political leanings, employer treatment toward a pregnant worker is relevant to EHS pros for two key reasons: 1) current and future workforce demographics means that sometime or another every workplace will experience a pregnant worker, and 2) a reasonable and temporary adjustment to work for a pregnant worker may solve many pregnancy discrimination claims.

Reasonable adjustment

California, Connecticut, Illinois, Louisiana, Minnesota and New Hampshire have laws that require private employers to make some adjustments to work for pregnant workers. New York proposed law in January 2012 to achieve this objective. Alaska and Texas have similar laws to cover workers in some public jobs.

The language in the above laws is basic. For example, California Government Code 12945(b)(1) states that it is an unlawful employment practice, “For an employer to refuse to provide reasonable accommodation for an employee for conditions related to pregnancy, childbirth, or related medical conditions, if she so requests, with the advice of her health care provider.”  “Reasonable” is not defined but may follow concept in ADA Amendments Act.

Teamwork

ESH pros often know best how to reasonably reduce workplace hazards. EHS pros and med pros should work together to address concerns of pregnant workers. Other partners may include HR and the employee’s supervisor.

Demand for topic

The demand grows for understanding proper treatment for pregnant workers.

Here’s how you can meet this demand: 

  • Avoid stereotyping pregnant workers. The majority of pregnant workers need no adjustments (except attitudes) to pregnancy at work.
  • Learn what workplace health and safety adjustments to pregnancy are needed.
  • Determine what “reasonable” adjustments to pregnancy may work at your workplace.

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Recent Articles by Dan Markiewicz, MS, CIH, CSP, CHMM

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