Laws define acceptable behavior in society. Ambiguity exists in many laws. Letter-of-the-law interpretation where word definition, sentence structure, and even punctuation, such as where a comma is placed, is often necessary to determine how some aspect of law will be enforced or adjudicated in the courts.
Broad and complex hazards
Workplace hazards today are broad and complex. Where specificity of law is absent or ambiguous, such as workplace safety for Covid-19, OSHA’s “General Duty” clause, section (5)(a)(1) of the OSH Act, becomes an enforcement incentive.
An employer’s general duty to provide a workplace “free of recognized hazards” is an enormous challenge. EMFs, psychological stress, nanotechnology, fatigue, thermal extremes, outdated standards, such as noise, even long recognized hazards such as ergonomics, just to name a few, are absent, lack specificity, or are ambiguous within OSHA laws.
Global pressures add to the complexity of keeping U.S. workplaces free of recognized hazards. OSHA’s 2012 revised HazCom standard, for example, introduced the globally harmonized and required, where applicable, hazard statements on SDS and labels “may damage the unborn child” and “may cause harm to breastfed children” with required precautionary statements that include “obtain special instructions before use.” Add to this pressure the seemingly globally ubiquitous California Prop 65 label, “This product is known to the State of California to cause cancer or birth defects.”
Lack of enforcement
First, regarding the immediate above, OSHA lacks authority to enforce control of workplace hazards to the public. An unborn child and breastfed children are arguably members of the public – but surely not workers.
Second, commonly used statistics by OSHA include, “Federal OSHA is a small agency; with our state partners we have approximately 2,100 inspectors responsible for the health and safety of 130 million workers, employed at more than 8 million worksites around the nation – which translates to about one compliance officer for every 59,000 workers.”
Even if OSHA wanted to greatly expand General Duty Clause enforcement, the resources are not there for the Agency to accomplish the task.
Pregnant Workers Fairness Act
OSHA HazCom suggests an employer duty, but offers no specificity, to help employers protect those in the above equation from harm. Amending laws such as OSHA, PDA, FMLA, and ADA, each of which may influence the above equation, have legal and enforcement weaknesses. A standalone law, commonly called Pregnant Workers Fairness Act (PWFA) was necessary.
Support for PWFA laws has consistently grown since 2012. New Mexico, Tennessee, and Virginia enacted PFWA law in 2020 – that now adds up to 30 states, D.C. and four cities. This column’s November 2020 article provide OHS highlights of the U.S. House passage of the PWFA by a vote of 329 to 73. The U.S. Senate did not vote (not at the time of this writing) on the PWFA during 2020 legislative session. Smooth sailing may be ahead. Senator Biden cosponsored the FMLA law. President-elect Biden supports the PWFA. As a Senator, vice-president elect, Kamala Harris, cosponsored pregnancy support laws. Look for PWFA as federal law in 2021.
Proper interpretation of PWFA law is challenging. The veneer of these laws are ADA-like but the true focus of PWFA is the health of the pregnant worker, and by extension, health of the others in the above equation. HR has a huge role in managing PWFA law, so does legal, but workplace health and safety decisions are paramount.
Tennessee PWFA, Public Chapter No. 745, Senate Bill No. 2520, came into force October 1, 2020 – the latest to so. Therefore, let us look at some highlights of Tennessee PWFA law.
Passed House by a vote of 91 to 0. Passed Senate 29 to 0. Law defined in 982 words (shorter than this article).
Key requirement: 50-10-103(b) It is an unlawful employment practice for an employer to (1) Fail or refuse to make reasonable accommodations for medical needs arising from pregnancy, childbirth, or related medical conditions of an applicant for employment or employee, unless the employer demonstrates that the accommodation would impose an undue hardship on the operation of the business of the employer.
50-10-103(c) elaborates when a “healthcare professional” must provide “certification” that justifies an employee’s request for a reasonable accommodation.
50-10-104(a) The commissioner (labor and workforce development) shall enforce this chapter and may promulgate rules necessary to effectuate this chapter in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
50-10-104(b) Any person adversely affected by an act in violation of this chapter may bring a civil action in the chancery court or circuit court in the jurisdiction where the alleged violation occurred. In the action, a court may issue back pay, compensatory damages, prejudgment interest, reasonable attorney’s fees, and any legal or equitable relief that will effectuate the purpose of this chapter.
Are any of the above issues a particular threat or opportunity? Does unanimous legislative support mean anything special? What is a reasonable accommodation? What is undue hardship? OSHA 29 CFR 1910.1020(c)(9) “Health Professional” means a physician, occupational health nurse, industrial hygienist, toxicologist, or epidemiologist, providing medical or other occupational health services to exposed employees. Could a CIH® satisfy number 4. What future rules may be necessary to “effectuate this chapter”? There are about one OSHA compliance officer for every 59,000 workers, but there are about one attorney for every 122 Americans available for work; see ISHN “Check your legal requirements,” August 2020. How does this information impact issue number 6?
Ninety percent (90%) of pregnant workers reasonable accommodation requests should be easily resolved. The 5% of requests or misunderstandings at each end of this issue’s bell curve are where key challenges will be found.
SCOTUS Justice Kennedy opined in the 2015 ruling, Peggy Young v UPS, that pregnant workers must take steps to “avoid risks to their health and health of their future children.” PWFA laws today are an avenue to address these broad risks. OHS pros must understand PWFA laws.