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MANAGING BEST PRACTICES: Protecting pregnant employees in the U.S.

July 1, 2006
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Note: This is the first in a three-part series.


When you hit rock bottom, there’s no way to go but up. This seems to be the approach to ensuring a healthy pregnancy in the U.S.

In 2005, the U.S. was next to dead last, just ahead of Latvia, for having the worst infant mortality rate among the world’s 33 major industrialized nations, according to Save the Children, a global NGO. There are all kinds of explanations why the U.S. fares so poorly in regards to infant mortality. One reason is that the U.S. healthcare system greatly favors treatment over prevention.

In an effort to reverse the trend of increasing infant mortality in America, along with stemming the increase in other infant health problems such as low birth weight, the U.S. Centers for Disease Control issued recommendations in April 2006 to improve preconception health. See http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5506a1.htm. The CDC recommendations focus on prevention, beginning with individual responsibility. For example, the CDC recommends that all women of childbearing age treat themselves as pregnant, even if they don’t plan to conceive.

Public health concern

This public health problem is a growing concern for U.S. employers. Consider the demographics: in 2004, 62 percent of the 64.7 million women employed in the U.S.’s six million workplaces were of childbearing age. During their working lifetime 80 percent of employed women will become pregnant. If millions of employed women ask the question, “Will my job harm me or my unborn child?”, who provides them an answer?

The U.S. Supreme Court in UAW v. Johnson Controls (1991) says employers must help answer this question, and lower courts have upheld this precedence. The U.S.’s highest court ruled that employers must fully inform an employee of workplace risks to their pregnancy. Individual responsibility then kicks in — the employee who is pregnant or planning a pregnancy must decide if the risks are acceptable to her. An employer is prohibited by law from taking any discriminatory action in these cases.

Maternity protection

A hands-off approach when dealing with pregnant employees also can be seen in the U.S.’s official response to the International Labour Organization’s Maternity Protection Convention (No. 183) and Recommendation (No. 191) of 2000. The U.S. informed the ILO that, in regard to maternity protection, “The (U.S.) government should not decide whether the (work) position held by a woman is prejudicial to her health or that of her child. That decision should be made by a woman in consultation with her physician. Additionally, a woman should not be prohibited from making her own decisions as to whether to work and when to work.”

The U.S.’s approach to risks faced by pregnant employees goes against the tide of actions by other nations. As of June 2006, 92 countries around the globe, including all countries in the European Union, have established legislative health protections for pregnant employees. Health protections include provisions on work time, breastfeeding, and/or avoiding dangerous or unhealthy work. A database of these countries, and the health protections that are established, can be searched at: (http://www.ilo.org/travaildatabase/servlet/maternityprotection?pageClass=org.ilo.legislation.work.web.CategorySearchPage

In the United Kingdom, for example, legislative health protections for pregnant employees require employers to conduct and communicate a risk assessment for workplace pregnancy hazards before an employee is pregnant. If an employee voluntarily declares that she is pregnant, the employer then must tailor a risk assessment for that employee. Based upon the findings of this risk assessment, the employee’s physician may then provide specific guidance for a healthy pregnancy. In essence, the UK is mandating what the U.S.’s CDC is voluntarily asking people to do.

Voluntary approach

U.S. employers might feel that a voluntary approach to pregnant employees is the most economically favorable way to go, but this is fool’s gold. Consider the following scenario:

The research article, “Work Activity in Pregnancy, Preventive Measures, and the Risk of Delivering a Small-for-Gestational-Age Infant,” appeared in the May 2006 issue of the American Journal of Public Health. The research, conducted in Quebec, Canada, found that the occupational conditions of night hours; irregular or shift-work schedule; prolonged standing; lifting loads; noise; and high psychological demand combined with low social support, increased the risk for having a low birth weight (LBW) infant. Elimination of these conditions before 24 weeks of pregnancy reduced the risks close to those of unexposed women.

If you have safety and health responsibility for a U.S. workplace, what do you do with this information?

Before you answer this question, consider that the research article fulfills the Daubert criteria for admissibility in a U.S. court — the research is not “junk science.”

Legislatively (under OSHA rules, for example) you’re not required to do anything. Under the precedent set by the U.S. Supreme Court in UAW v. Johnson Controls, and under the theories of negligence and general tort liability, the employer has a duty to inform pregnant employees of the risks described in the article — if these risks are present at the workplace. Breach this duty (don’t inform pregnant employees of the risk), and if there is subsequent harm (birth complications or chronic health problems that often accompany LBW infants) then your employer is vulnerable to a lawsuit.

And what would a lawsuit cost? Prenatal injury claims in the U.S. have reached the $100 million mark.

Assume there is no threat of a lawsuit, but failure of your company to eliminate the risks described in the article contributes to one or more employees delivering a LBW infant. Costs of delivery and care for a LBW infant may range from $10,000 to over $100,000 more when compared to costs for a child born of normal weight. On top of this, LBW infants are more prone to mortality in their first year of life, and chronic health conditions including asthma, high blood pressure and poor cognitive development have been associated with LBW infants. Chronic health problems can greatly increase a LBW infant’s lifetime healthcare costs. These costs, in varying direct and indirect portions, may be borne by your employer, and the rest of society.

What hat should you wear?

All this begs the question of when, if ever, does a U.S. occupational safety and health pro put on a public health protection hat and address the needs of a pregnant employee and her unborn child?

Regarding workplace hazards, it’s unreasonable to expect pregnancy risk decisions should only be made by a woman in consultation with her physician — unless the physician personally conducts an onsite inspection of the workplace, which rarely happens. The employer, through their superior knowledge of workplace hazards, is a critical interface between a pregnant employee and her healthcare providers.

Responding to research

Fully informing employees of workplace risks to their pregnancy and taking preventive actions requires occupational safety and health pros to stay abreast of the latest in research findings. This is a significant challenge considering that research on the risks to pregnant employees is seeing rapid growth.

In part two of this three-part series, we’ll explore why occupational safety and health pros must mostly look to research, guidelines and laws coming from Europe to help protect pregnant employees in the U.S. from workplace hazards.

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