OSHA’s June 28, 2022, advanced notice of proposed rulemaking (ANPRM) for blood lead levels 1 comes during a very contentious time.
Fetal personhood laws
The U.S. Supreme Court’s June 2022 overturn of 1973 Roe v Wade has emboldened states such as Arizona, Georgia, Iowa, Ohio, Oklahoma, and Texas, and many others, to propose “fetal personhood” laws. Arizona’s proposed personhood law, for example, classifies fetuses, embryos, and fertilized eggs as “people” starting at the point of conception. Georgia’s recent LIFE Act adds “an unborn child with a detectable heartbeat” to the definition of dependent. For the 2022 Tax Year this amounts to a dependent exemption of $3,000 for each unborn child from July 20, 2022, through December 31, 2022. This past July 2022, a driver in Texas contested a ticket for driving alone in a high-occupancy vehicle (HOV) lane. The driver claims her pregnancy counts as two people.
Federal pro-life legislation is on the move, too. For example, the U.S. House’s “Life at Conception Act” (H.R. 1011) 2 has 166 Republican (no Democrat) cosponsors as of the end of July 2022. The Life at Conception bill declares that the “right to life guaranteed by the Constitution is vested in each human being at all stages of life, including the moment of fertilization, cloning, or other moment at which an individual comes into being.”
OSHA’s lead standard – Brief history
OSHA’s 1978 lead standard included the recommendation that “in order to protect the fetus and newborn from the effects of lead on the nervous system, blood lead levels (BLL) must be kept below 30 ug/100 g [30 ug/dL] for workers who wish to plan pregnancies.” Concerned that they could not keep BLL below 30 ug/100 g for women (but not men) who worked with lead, approximately 20 percent of U.S. Fortune 500 companies implemented “fetal protection programs (FPP).” FPP required that before women could work with lead, they had to prove they were not capable of having children.
In 1991, the U.S. Supreme Court ruled in UAW v. Johnson Controls that FPP violate provisions of the 1978 Pregnancy Discrimination Act. Plaintiffs in UAW v. Johnson Controls had two main objectives: One, eliminate discrimination among women workers, and two, ensure that children born from women who worked with lead, were not harmed from lead exposure e.g., lead may pass the placental membrane and enter the fetal blood to cause harm. But only one of these objectives, it was believed, could be successfully argued before the U.S. Supreme Court. Why did plaintiffs in Johnson choose the discrimination argument and not argue to make the workplace safe e.g., ensure that employer controls keep BLL below 30 ug/100 g?
The legal era back then until now was predominantly pro-choice. The U.S. Supreme Court, for example, remarked in the 1991 unanimous decision in Johnson, that “Title VII, as amended by the PDA, mandates that decisions about the welfare of future children be left to the parents who conceive, bear, and raise them, rather than to the employers who hire those parents or the courts.” Further, when Roe was settled in 1973, the term “person” did not apply to the unborn. We are definitely in different times now. Recent actions by the U.S. Supreme Court gives pro-life laws the upper hand for the foreseeable future.
OSHA’s ANPRM is necessary because medical findings show that adverse effects of lead in adults (and fetuses of pregnant workers) can occur at BLLs lower than current federal OSHA lead standards and recommendations allow. OSHA is “seeking input on reducing the current BLL triggers in the medical surveillance and medical removal protection provisions of the general industry and construction standards for lead.”
Choice of words
Table 2 – “Overview of Health Effects Associated with Elevated BLL in Adults” in OSHA’s ANPRM includes a misnomer. The lowest BLL, 5-10 ug/dL, in the Table includes “Developmental effects (e.g., decreased cognitive and reduced birthweights) – fetuses exposed to lead in utero through pregnant worker lead exposure.” Fetuses are not adults. Fetus, however, may be the wrong word in OSHA context.
OSHA’s 2012 revised Hazard Communication Standard requires specific wording in various circumstances. Since June 2016, for example, OSHA requires the following:
The employer shall post the following warning signs in each work area where the PEL is exceeded:
- May damage fertility or the unborn child
- Causes damage to the central nervous system
- Do not eat, drink or smoke in this area
The employer shall ensure that no statement appears on or near any sign required by this paragraph (m)(2) which contradicts or detracts from the meaning of the required sign.
Let us reconsider 1910.1025(m)(2)(ii) above. Would replacement of “unborn child” with conceptus, embryo, fetus – or similar term – contradict or detract from the meaning of the required sign? I am not aware that OSHA ever provided a definition for unborn child.
On October 28, 2021, the CDC clarified that “No safe BLL in children has been identified.” 3 The CDC also updated their blood lead reference value (BLRV) to 3.5 ug/dL from previously 5.0 ug/dL. Per the CDC, the lower BLRV for children may now be used to trigger “prompt actions to mitigate health effects and remove or control exposure sources.”
If employers back in the day were uncertain that the BLL in pregnant workers could be consistently controlled to 30 ug/dL or less – how certain are employers today that approximately one-tenth that level is consistently achievable now?
It is uncertain what may happen if advocates weigh-in on pro-life objectives for OSHA’s ANPRM for lead. Table 2 in the ANPRM, for example, shows that at a BLL between 10-20 ug/dL “Spontaneous abortion (miscarriage)” may occur.
Consider the questions that may arise in states with personhood laws: Will an employee’s medical treatment required because of a miscarriage, potentially caused by workplace lead exposure, be reportable to a state authority? Who should be held liable, employee or employer, if lead exposure negligence is suspected of causing death e.g., spontaneous abortion of an unborn child? Given that the CDC has not identified a safe level of lead exposure to children, should state law be developed to allow employers to consider any exposure to lead to be inherently dangerous and prohibited by any worker that could potentially become pregnant? The U.S. Supreme Court said back in 1991 that actions such as FPP violate the PDA. But that was back in the legislative pro-choice era. The U.S. Supreme Court overturned 1973 Roe. What stops the high court now from overturning the 1991 ruling in Johnson Controls? Which is the greater objective: protecting life or prohibiting pregnancy discrimination? State personhood laws will generate many questions and uncertainties.
Pro-choice and pro-life issues are very contentious today. Ensure that you consider your employer’s HR and legal guidance on proper management and response to contentious issues. For example, how does HR and legal at your place of work define and address unborn child within the context of OSHA in states with and without fetal personhood law?
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