The United Nations Human Rights Council will release a report in June, 2016 to dispel the “myth” that U.S. women enjoy rights and protections under law consistent with international standards.1 EHS pros must stay alert to how the UN report plays out in the political arena and subsequently impacts the workplace. U.S. women’s “health and safety protections” are among the rights that fall behind international standards, according to the UN’s December 2015 preliminary findings on U.S. women’s rights. Findings include:
• The UN expert group was “shocked” by the “lack of mandatory standards for workplace accommodation” for pregnant women; and,
• The U.S. “is one of only two countries in the world (the other being Papua New Guinea) without a mandatory maternity leave for all women workers.”
The UN’s June 2016 report will compare U.S. law and practice to the International Labour Organization’s (ILO) 2000 Maternity Protection Convention (C183) and accompanying recommendation (R191).2,3 The five-step safety and health logic for ILO C183/R191, in summary, requires employers to:
1. Conduct workplace maternity hazard assessments;
2. Communicate risks to workers;
3. Provide accommodations to eliminate risks;
4. If risks cannot be eliminated, transfer to other work; and,
5. Provide paid leave when transfer is not feasible.
A safety and health necessity
Within ILO C183/R191, maternity leave is a safety and health necessity, not a luxury. If workplace hazards do not endanger a pregnant worker’s health or the health of her future/new child, then work may continue until near the time of delivery, and work may resume as soon as the worker is physically able after giving birth.
Marissa Mayer, Yahoo’s CEO, is an example. Mrs. Mayer worked the day before giving birth to twin girls in December 2015. Mayer plans to take only a fraction of available paid leave because Yahoo supports her maternity needs. As this concept is better understood, U.S. organizations should cost-compare the value of eliminating maternity risk to minimize maternity leave. To meet global human rights (and safety/health) standards organizations should follow Nestlé’s lead and cite conformance to C183 in their maternity leave/protection policies.
A shocking gap
The UN report most likely will cite data in the ILO’s 2014 “Maternity and paternity at work: Law and practice across the world” report to demonstrate why they are “shocked” by the gap between the U.S. and other countries in maternity protection.4 The U.S. is one of only a few nations worldwide that provide no federal protections for “dangerous or unhealthy work” during maternity.
The notion that maternity protection is not an U.S. EHS concern is corrected by reviewing the reasonable accommodation examples (see Table I) in the Illinois Human Rights Act P.A. 98-1050 effective January 1, 2015 (applicable to employers with one or more employees) creates additional protections for pregnant workers. P.A. 98-1050 is among 16 “pregnant worker fairness laws” enacted since 2012. The Illinois 2015 fact sheet on pregnancy rights in the workplace serves as a template for proposed law in other states, and may serve as a guideline for workplace best practices.5
Reasonable accommodation examples. Illinois Human Rights Act P.A 98-1050.
1. More frequent or longer bathroom breaks;
2. Breaks for increased water intake;
3. Breaks for periodic rests;
4. Private non-bathroom space for expressing milk and breastfeeding;
6. Assistance with manual labor;
7. Light duty;
8. Temporary transfer to a less strenuous or hazardous position; 9. The provision of an accessible worksite;
10. Acquisition or modification of equipment;
11. Job restructuring;
12. A part-time or modified work schedule;
13. Appropriate adjustment or modification of examinations; training materials, or policies;
14. Reassignment to a vacant position;
15. Time off to recovery from pregnancy; and
16. Leave necessitated by pregnancy.
OSHA isn’t the answer
The U.S. safety and health myth for pregnant workers lives on if your mindset is OSHA compliance. None of the Illinois examples are OSHA requirements. Still, P.A. 98-1050 and similar laws have significant deficiencies. They place the burden on the pregnant worker to make accommodation requests; the burden to grant reasonable accommodations then shifts to the employer.
Superior knowledge of workplace hazards should rest with employers, not workers. NIOSH issued recent guidance for pregnant workers on the hazards of lifting, respirator use, standing, bending, and exposure to solar radiation. ACGIH TLV guidance for pregnant workers includes noise, heat, and other hazards. OSHA has GHS guidance for chemical exposure for pregnant workers. Why are hazards to maternity the exception?
Conformance to Illinois and international human rights standards is the objective. Now is the time for you to frame your position on the topic.