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MANAGING BEST PRACTICES: When a fetus goes to work. . .

August 1, 2003
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Should a fetus have rights? The June 9 (2003) cover of Newsweek asked this question and 87% of the more than 53,000 people that answered an online poll said yes. This is nearly a complete reversal of public views from less than a decade ago.

The changing public views on fetal rights have not been lost on politicians (or lawyers). By the time you read this article President Bush may already have signed the Unborn Victims of Violence Act into federal law. Although the unborn victims law, and similar state versions, will not have an immediate impact upon safety and health in most workplaces, continuing legal actions to provide rights to a fetus will have a profound impact on how safety and health pros approach and manage workplace hazards and risks.

I have addressed the topic of workplace reproductive health several times in this column over the past year, but its potential impact upon safety and health pros is so significant that I feel compelled to keep you alert to emerging threats and challenges.

My uneasiness stems from the catch-22 of this topic. Pregnant women cannot be denied rights to employment meaning that a fetus cannot be kept away from the workplace. In 2000, 55 percent of the nearly two million U.S. women who gave birth were in the workforce. Annually there may be more than one million fetuses exposed to potential workplace hazards.

Rapid advances in sciences, such as genetic testing, are honing in on the causes for health problems and (potential) diseases found in newborns, as illustrated on the cover and articles in the July 2003 issue of Discover magazine. The magazine also carries an article on the "Top 10 cases of death in the U.S. by age." Congenital defects are the second leading cause of death in ages 1-4 and the third leading cause of death ages 5-14. Pressures are mounting to determine if workplace exposures contribute to these concerns.

Baby brings suit

In 1997, the California Supreme Court ruled in Mikayla Snyder v. Michael's Stores, Inc. that a baby (Mikayla), who suffered toxic exposure to carbon monoxide while in utero (as a fetus) through its mother's exposure to CO at work, as a result of negligent conduct of the employer, could bring suit outside the workers' compensation system. Similar rulings promptly followed in Indiana, Colorado, Louisiana, and Illinois.

The Snyder ruling should be of particular interest to safety and heath pros. According to NIOSH, the number of people potentially exposed to CO in the work environment is greater than that for any other physical or chemical agent. This implies that there are many cases where a fetus may be exposed to CO in the workplace.

Although the toxicology of CO for fetal exposure is generally understood (see www.coheadquarters.com), there is no consistent agreement as to safe exposure limits, as demonstrated in Table I. And without regulatory guidance, safety and health pros may have to choose their own path.

The choices for a safe limit are difficult. On the low end, choosing zero CO exposure is not practical because zero may exceed ambient air levels. EPA's NAAQS for CO may be technically and economically infeasible at many workplaces. On the high end, OSHA's PEL may not be "unsafe" for a fetus, provided there are no high peak CO exposures in the TWA and no other hazards (e.g., no additive exposures, including noise, the women is a non-smoker, etc.) are present. But at OSHA's PEL there may be no margin for safety.

Who's at risk?

The old thinking has been to meet OSHA requirements to protect the employee, pregnant or not. If a pregnant employee requests more protection, then will it be given.

A new way of thinking may be needed as fetuses gain more rights. Women in more than 30 states, where fetal rights laws are established, have been prosecuted for harming their fetus (abortion excluded) by acts such as abusing drugs. While a pregnant employee may agree to elevated workplace exposure risks, "the fetus didn't agree to be at risk" according to new legal theories from Eugene Brodsky, an attorney who has represented a child who sued a business over birth defects. What's a safety and health pro to do under this additional catch-22?

Group decision

Most importantly, you cannot decide on a safe fetal limit to CO alone. It must be a team decision.

Foremost on the team is a competent, preferably certified, industrial hygienist. In addressing controls for PELs, OSHA requires a "competent" IH (see 29 CFR 1910.1000(e)). And ACGIH advises that TLVs are to be interpreted and applied only by a person trained in industrial hygiene (see policy statement in 2003 TLVs and BEIs booklet).

The direction from OSHA and ACGIH in using an IH is made because they understand the great complexity in effectively using many health-based exposure limits. Any IH helping to address the topic at hand should have a thorough understanding, and be capable of applying, the data in the text "Evaluating Chemical and Other Agent Exposures for Reproductive and Developmental Toxicity," National Research Council, 2001.

Next on the team, you need a lawyer who is up-to-date on this topic. The IH should report directly to the lawyer on this issue, perhaps under privileged and confidential protections. The IH should inform the lawyer as to the most reasonable CO exposure limit for a fetus under foreseeable conditions in a specific workplace. The lawyer should determine if this limit is defensible if legally challenged. The lawyer should propose other legal posturing, such as any special risk communication to employees.

Senior business managers have the ultimate decision on what to do in this matter. Trade or other business organizations and other party's views on this topic, may influence their decisions.

John Howard, MD, director of NIOSH, said at the annual American Industrial Hygiene Conference and Expo in Dallas this past May that "anticipating future challenges in workplace safety and health is unavoidable if we are to properly prepare for them." Fetal rights are on a fast track and are drawing safety and health pros into uncharted territory.

Are you ready to help blaze the new trail?

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