Health policy legislation shifts to the states
The U.S. lags behind competing nations. Where there is no critical mass for action, states are filling the void.
“Managing Best Practices” this month features a very special guest columnist, Dr. Ilise L. Feitshans.
Much confusion complicates workplace pregnancy and reproductive health efforts.
We have a swamp of occupational safety and health theory and practice currently. Lack of nationwide clarity undermines what should be unequivocal reproductive health protections, whether preconceptual, post-childbearing for target reproductive organs, or during pregnancy. All these worker groups need unique sets of protections and those needs are cross-cutting issues not shaped by race, sex or ethnicity.
But there is no critical mass to tackle this problem nationally in the U.S.
Views on health & disability
In the U.S., we make the mistake of treating health as an economic issue even though equity for people with disabilities is a civil right under national federal law and internationally. Raising economic arguments against civil rights protection is awkward; we have tons of case law stating that economic arguments against civil rights can only rarely work. Of course sometimes they do. But what is health if not the reverse of disability?
Health and disability are two sides of the same coin. This means that the same condition in one context is a disability and in another context is healthy. Eating and smoking are easy examples; there was a social mandate to smoke in order to be cool that is now illegal in public. Obesity, once a sign of greater prowess and wealth, is now as unpopular as sour pickles. And many people believe that bipolar disorder was the essence of creativity in fine artists such as Tchaikovsky and Mozart. The list of social constructs dividing the same traits between sickness and health goes on…
Saving money, increasing productivity
In most industrialized nations, even ones whose politics we dislike because of totalitarianism or threats to democracy, the nation offers a wide range of public health care including paid leave during pregnancy and job protection for pregnant workers. This saves money and increases productivity.
Pregnancy should undoubtedly be treated as a disability under law. To say that pregnancy is physically mentally and socially disabling is a polite understatement. Women still risk their life during pregnancy, and in the U.S. and worldwide many women lose that gamble and die. In most countries, remedial intention in the laws provide benefits to women so they can be paid and take time off from work to grow their family without losing income or losing their job.
Never too late
Ironically, the health economics imperative that has been used for decades to eschew publicly funded massive health care in the U.S. is now the best friend of people who believe in prevention and early detection rather than expensive emergency care.
The imperative today is not humanitarian or moral or religiously based but economic. Our competitors understand the amazing cost-effective benefits of widespread national health care. Not only do they provide it but their people – workers, business owners and their dependent families -- are far healthier than we are and provide a much more stable workforce at less cost.
We in the U.S. have historically ignored that biological differences transform health when discussing discrimination. The major contribution of the disability community to the world is the use of the term equity rather than equality in the jurisprudence of rights. Nothing can ever be equal, but everyone deserves a fair, equitable chance at the opportunity to succeed. This is the gift of insight that the disability movement and its powerful legislation have given to the corpus of human rights laws internationally and in the U.S. In the U.S. we make the mistake of treating health as an economic issue even though equity for people with disabilities is a civil right under national federal law and internationally.
The business case
Today we have a highly educated population of professionals who can work anywhere in the world. We are seeing U.S. local jurisdictions write laws to keep those professionals home in their jurisdiction without being childless. This is not driven by the human rights analysis. It is driven by economic analysis demonstrating the superior position of healthy competing nations. U.S. states understand this handy resolution to a nationally intractable problem. States like Kentucky and Michigan embrace protections for political gain to and foster job creation at the local level.
Kentucky’s Pregnant Workers’ Rights Act (SB18) was approved by the General Assembly March 28, 2019. Kentucky joins 25 state and local jurisdictions that have passed such laws in the past six years. Michigan OSHA’s February 2019 (enforcement deadline) revised lead standard recommends a six-fold reduction in blood lead levels of female workers compared to federal law. The state law purports to prevent adverse health effects to the “developing fetus.”
State laws echo protracted court battles in the 1980s: OCAW v American Cyanamid; EEOC enforcement against Bunker Hill smelter in Kellogg Idaho; and the U.S. Supreme Court case of IUAW v Johnson Controls decades ago. Women workers in those cases were required to show a surgical scar from sterilization procedures in order to obtain or retain employment in lead smelting. The euphemistically labelled “Fetal Protection Policy” claimed to protect the fetus by making its presence impossible.
States can look good to voters and at the same time be attractive to young workers who are their future tax base because, given the health care already provided by competing nations, having health care is simply good business.