Although this obligation exists, no court or segment of the U.S. government has provided specifications for how the risk assessment and communication must be conducted. U.S. employers are free to choose a method that makes sense to them.
Figure 1 — Example of a European Commission Declared Pregnancy Risk Assessment Scorecard Click here to enlarge image
One method that may make sense is to follow guidance for risk assessments for pregnant workers established by the European Commission. Figure 1 is an example of a scorecard that may be used to assess and communicate risks. Ref. # aligns with hazards identified by the EC guidance. For the color code:
• “NA” indicates that the hazard was not applicable (not present).
• Green means that no unusual risks were discovered.
• Yellow means there is uncertainty in the risk; harm may be suspected.
• Red means exposure may damage fertility or the unborn child.
The employee may be informed that for NA and green ranked scores there is no reason to worry about the hazard. The employee should seek counsel with their health care provider(s) for yellow and red scores.
Table 1— Aspects of pregnancy that may require adjustment to work Click here to enlarge image
The risk score, i.e. color code, for hazards is not called out in the EC guidance. The risk scores, which may be further broken down quantitatively, will be dependent upon the knowledge and skills of the risk assessor(s).
While some hazards are easier to rank than others, aspects of pregnancy, because of its broad considerations, may pose special challenges. In Table I are the aspects of pregnancy that may require an adjustment to work, as determined by the EC.
Table I is not inclusive and other aspects of pregnancy and factors in work should be considered. For example, hormone surges, particularly in the beginning and latter stages of pregnancy, may bring on “mood
swings.” For some workplaces these mood swings may be a factor in work.
Although the Supreme Court ruled that an employer has an obligation to conduct and communicate risks during pregnancy, the court did not impose an obligation for an employer to reduce risks beyond what is provided in regulations. The court stated, “Decisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them rather than to employers who hire those parents.”
New EEOC regulations
Equal Employment Opportunity Commission (EEOC) Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act (ADA), as Amended 2, effective May 24, 2011, complicates the issue of whether an employer must provide any special accommodations for pregnant workers. The ADA Amendments Act provides that normal pregnancy conditions fall outside of ADA’s scope. Disorders of pregnancy, however, that may not be normal now appear to have coverage.
Workplace risks to pregnancy are a complex issue. Given that about 80 percent of women will become pregnant sometime during their work life, OSH pros must be prepared to address concerns. Understanding hazards, risks, and communication to workers must be tempered with realities of regulations such as the Pregnancy Discrimination Act and ADA Amendments Act.