Class action lawsuits regarding reproductive health rights were recently filed against Walmart, the U.S.’s largest private employer, in Illinois, New York and Wisconsin (September 2018). Many other employers such as Amazon, Merck and Novartis face similar lawsuits, too, relating to pregnancy discrimination, failure to provide reasonable accommodations (such as lifting, limited chemical exposure, etc. ) and violations of EEOC rules.
If you don’t get protection of workers’ reproductive health right, your company will be sued. It’s just a matter of time.
The peer-reviewed article, “Inclusive and Gender Equal Protection: Protecting Workers’ Reproductive Health” in the March 2018 issue of Professional Safety Journal (PSJ) shows the willingness to do more – but missteps in the article and erroneous beliefs (see PSJ Reader Forum, September 2018) demonstrate that greater understanding is critical.
See above for what an employer should do.
Note. Flowchart Adapted from International Labour Organization Maternity Protection Resource Package, Module 8, Health Protection at the Workplace, 2012.
The PSJ authors developed a Susceptible Worker Assessment Program (SWAP) to evaluate special worker exposure groups such as pregnant workers. At what box above do the PSJ authors of the peer-reviewed article, suggest that SWAP be introduced? SWAP doesn’t begin until initiated by worker concerns; that often begins at the 11th box. OSH pros must be proactive and work the flow from top-to-bottom.
The prelude for much of what’s going on today began in 2012. The trends, to name a few, include Maternity Protection flowchart logic (see above); OSHA HazCom references to “unborn child” and “breastfed children;” a new style of pregnancy accommodation law in California; and the Pregnant Workers’ Fairness Act introduced into Congress.
U.S. stakeholders realized that other developed nations treated pregnant workers fairly. ILO Conventions are international labor standards, ratified or not. Ratified simply means place into federal law and enforce. One-hundred and eighty-five countries have federal legislation that complies to one or more elements of ILO’s Maternity Protection Convention.
The U.S. is not among these 185 countries. Federal-paid maternity leave considered a safety and health necessity, not a luxury, is an element of the Convention. Every nation in the world, except for Papua New Guinea and U.S., comply with this element. And the Convention recommends that pregnant or breastfeeding women “are not obliged to perform work where an assessment has established a significant risk to the mother’s health or that of her child.” Twenty-six nations, but not the U.S., have federal legislation that require these employer risk assessments.
Exclude the feds
Knowing that U.S. feds would not take up the cause for fairness, much of the above is now built into state and city law shown above. Note the dates of enactment. And there’s more to come.
Note. Super-script date of law enactment, * prior to 2012 and generally with limited coverage e.g. state employees only. Search < U.S. Department of Labor’s Employment Protection for Workers Who Are Pregnant or Nursing >
Each law contains variations of federal PDA, ADA(AA), FMLA, and EEOC rules along with a smattering of other concepts including OSHA. Elements of these laws were built without OSH pro input, from what I can determine.
For example, Washington state set a weight lift limit at 17 pounds for pregnant workers, while Massachusetts and Minnesota set the weight limit at 20 pounds. Are these really “safe” weights? Per NIOSH’s 2013 guidance, depending upon reach and other factors, the safe weight may range from 36 pounds to zero. Pregnant workers may seek any weight limit, however, with support of her health care provider. In many of the laws, if the worker/employer can’t agree on a reasonable accommodation, maternity leave must be considered.
Explaining the SWAP logic (PSJ Reader Forum, September 2018) authors give the example where a pregnant laboratory technician would not be permitted to handle toluene but could work with acids elsewhere laboratory. Is this sound logic?
There should be no such thing as “no exposure” for a pregnant worker. If there’s “no” exposure to toluene, for example, then the pregnant worker can no longer remain in the lab. Measure in ppb or ppt is the point.
What’s the safe limit? It may be the DNEL. Odor not tolerable? Provide N95 particulate respirator with nuisance level relief. NIOSH has done the studies and this respirator is okay during uncomplicated pregnancies. Skin contact and other? Follow hierarchy-of-controls with the absolute last line of defense at paid maternity leave. If paid maternity leave is reached, the OSH pro likely failed to do the right things.
Employers are likely gambling that U.S. pregnant workers are too naïve or timid to take command of the flowchart activities. The Women’s March on January 21, 2017 was the largest single-day protest in U.S. history. Times have changed. Look at the table of local and state laws. I wouldn’t take that gamble that pregnant workers are naïve or timid. Are you going to wait for your company to be sued before changing with the times? OSH pros need to get this right!