A picture begins to emerge when enough pieces of a puzzle come together. This article highlights recent puzzle pieces that are certain to reshape an OHS pro’s view on workplace reproductive health hazards.

OSHA no, PWFA yes

From 12/15/2023 to 7/22/2024 NIOSH was busy updating or creating new online hazard information (separate titles) for Personal Protective Equipment; Take-Home Toxics; Anesthetic Gases; Antineoplastic Drugs; Chemical Disinfectants; Contact Stress; Epoxies and Resins; Formaldehyde; Heat Exposure; Infectious Agents; Ionizing Radiation; Lead and Other Heavy Metals; Noise; Nonionizing Radiation; Pesticides; Physical Job Demands; Secondhand Smoke; Smoke/Combustion By-Products; Solvents; and Work Schedules.

New information from NIOSH identifies that Aircrew (pilots and flight attendants); Artists; Childcare or working with children; Farm and greenhouse workers; Firefighters; Healthcare; Laboratories; Morticians/anatomy students; Nail, hair, and beauty salons; Office workers; Restaurants and bars; Veterinary or animal care setting; among others, may greatly benefit from the hazard updates.

Prior to the recent puzzle pieces above, the “getting help” section for hazard information topics from NIOSH always referenced OSHA, but not anymore. If readers need help on any of the above topics, they are directed to the Pregnant Workers Fairness Act (PWFA). NIOSH recognizes that the PWFA is now the driving force on workplace reproductive health hazards.

Technological and political change

Women’s reproductive health in the US is undergoing rapid technological and political change. Consider, for example, that one out of every 42 babies born in the US today was conceived by IVF or another assisted reproductive technology (ART). Over 8 million of the US population today were born with the help of ART.

In 2024, the Alabama Supreme Court ruled that frozen embryos used in IVF are children. The federal “Life at Conception Act” (H.R. 431) proposed in January 2023 with 131 cosponsors that would “implement equal protection under the 14th article amendment to the Constitution for right to life each born and preborn human.” Trump’s second administration will advance these types of laws.

Second Trump administration

Evidence is mounting that President Trump will follow the path on “Women’s reproductive health,” as established in Project 2025 (see Wikipedia entry for more information). Trump is expected to lead “the most pro-life administration in this country’s history” and “enact the most robust protections for the unborn that Congress will support.” If Robert F. Kennedy Jr., the founder of “Children’s Health Defense,” is confirmed as Secretary of the HHS (uncertain as I write this) then robust efforts by the Trump administration to further the health and well-being of all Americans “from conception to natural death” is certain.

NIOSH’s stance

NIOSH’s March 22, 2024, webpage titled “About Reproductive Health in the Workplace” includes the wording: “Some workplace hazards can affect workers’ sex hormones, their fertility, the health of their unborn children and their children’s health development.” Each of NIOSH’s reproductive health hazard topics above alludes to this position.

EPA’s TSCA

“Procedures for Chemical Risk Evaluation Under the Toxic Substances Control Act” (TSCA), with final rule effective on July 2, 2024, includes the concept of “potentially exposed or susceptible subpopulation” (PESS). PESS includes workers but also includes “children and pregnant women.”

TSCA chemical risk evaluations have led to the recent development of workplace exposure limits known as the ECEL and NCEL. These new exposure limits are equivalent to the European Union’s occupational DNELs (derived no effect limits) defined as “the level of exposure above which humans should not be exposed.” Each of the EU’s regulatory frameworks for risk management for chemicals considers developmental toxicity e.g., unborn children and child health development.

EEOC favored over OSHA?

OSHA’s 1978 lead standard and the EEOC’s 1978 Pregnancy Discrimination Act were on a collision course since their birth. The collision culminated in the 1991 US Supreme Court decision in UAW v Johnson Controls. Legal strategists debated whether it was best to argue the Johnson case on the framework of OSHA (workplace health) or EEOC (discrimination) merits. Plaintiff strategists believed that public opinion and legal arguments would greatly favor the discrimination route. The Johnson court unanimously ruled that “fetal protection programs” i.e., women must prove they are infertile before being allowed to work with lead, violated Title VII, as amended by the PDA, and were illegal.  

Tort liability

Johnson court records confirm that the driving force for employer fetal protection programs was fear of tort lawsuits if a child was harmed because of maternal lead exposure. The court addressed this concern by stating “If under general tort principles, Title VII bans sex-specific fetal protection policies, the employer fully informs the women of the risk, and the employer has not acted negligently, the basis for holding an employer liable seems remote at best.”

Tort negligence

As workplace reproductive hazards move outside the umbrella of OSHA administrative law and its companion workers’ compensation system, tort negligence is there to take their place. To win a tort lawsuit, generally four major hurdles must be cleared by a plaintiff. These hurdles are duty; breach of duty; causation; and damages.  

Employers have a duty under OSHA to provide a workplace free from recognize hazards. Similar duty may be found in many US laws, such as EPA’s TSCA. Recognition of reproductive health hazards comes from many sources such as new information coming from NIOSH and the PWFA. Causation used to be a formidable hurdle to clear for the plaintiff, with the understanding that association is not necessarily the cause. Development of ECELs, NCELs, and DNELs, among other similar limits, along with growth of epidemiological and occupational health studies has greatly lowered the causation bar. Concepts such as the Value of a Statistical Life now allow damages to easily involve tens of millions of dollars.

Cost of lawsuits

Cost and compensation in the US tort system amounted to $529 billion in 2022, equivalent to 2.1 percent of the US GDP (See US Chamber of Commerce’s November 20, 2024, report “The Hidden Costs of Lawsuits Continue to Grow”). The Chamber predicts that “If current trends continue, the costs of lawsuits will continue to skyrocket, with overall tort costs rising to over $900 billion by 2030.” Tort reform is unlikely to succeed under Trump’s second term in office.

Risk matrix

A dollar loss risk should be incorporated into your company’s frequency and severity risk matrix. You should consult with your company’s attorney to determine if any of the puzzle pieces in this article pose significant risk and warrant intervention. One way to minimize risk is to carefully review NIOSH’s recent information on reproductive health hazards along with reading the PWFA’s final rules that were effective June 18, 2024. Communicate any hazards found at your workplace, as appropriate.