by James L. Curtis, Erin Dougherty Foley, Adam R. Young, Megan P. Toth, and Craig B. Simonsen
Seyfarth Shaw LLP is an IMA Member
Pregnant women work in hazardous jobs across the United States and in every sector of the economy. While employers have a general duty to protect their employees from a condition known to cause harm, pregnant women may face unique risks and may be more susceptible to a range of serious workplace hazards.
The Occupational Safety and Health Administration (OSHA) notes that “exposure to reproductive hazards in the workplace is an increasing health concern.” The National Institute for Occupational Safety and Health (NIOSH) has information resources on pregnancy and reproductive health hazards. Ionizing radiation and lead, for instance, are known hazards to pregnant women and reproductive health. A fetus might be more vulnerable to certain chemicals, particularly in the early stages of pregnancy when it is rapidly growing and the baby’s organs are developing. Further, changes in a pregnant employee’s immune system, lung capacity, and even ligaments can increase their risk of injury or illness due to certain workplace hazards. Employers must protect their employees (including more susceptible pregnant employees) and prevent exposures to these known hazards.
Involuntary Reassignments of Pregnant Women
This does not mean that employers should be reactive and involuntarily remove pregnant women from positions or duties in which they may be exposed to hazards, either to themselves or their developing baby, without the employee’s request and/or agreement. There are both federal and state laws that protect pregnant employees in the workplace, including Title VII to the Civil Rights Act of 1964, which prohibits discrimination based on sex and the federal Pregnancy Discrimination Act prohibits discrimination against employees “on the basis of pregnancy, childbirth, or related medical conditions.” Moreover, the Americans with Disability Act (ADA), as well as state pregnancy accommodation laws, prohibit discrimination based on qualifying pregnancy related disabilities, and, under certain circumstances, prohibit employers from requiring employees to take accommodations to which they do not agree (i.e., a forced reassignment or relinquishment in job duties).
To the extent that an employer changes a job assignment or removes a woman from a desirable position because she is pregnant or may become pregnant, without a specific accommodation request, and in some cases, agreement from the employee, the employer could face a claim of gender and/or pregnancy discrimination.
Where there is no medically-documented basis (e.g. chemical or radiation hazard) that exposure might injure a fetus, a pregnant or potentially pregnant employee’s perceived susceptibility to a hazard probably would not be a legitimate reason to involuntarily demote, take away opportunities, or discharge a female employee. This, however, does not mean that employers should not offer pregnant workers the opportunity to avoid exposure that may be more harmful to them based on their pregnancy or that it should not be consider as an accommodation. It simply means job assignment and removal of desirable duty should not be assumed or forced upon a worker because she is pregnant.
However, some potential chemical and radiation exposures may force an employer to make involuntary reassignments. For example, low levels of lead or radiation may be safe for most employees, but may not be safe for women who are pregnant or may become pregnant. Employers should inform employees of these hazards and their potential effects on reproductive health and fetal health, and request that the employee notify the employer if the employee is pregnant or is potentially pregnant. Where there is a potential chemical or radiation hazard that might injure a fetus, an employer may need to propose a reassignment and overrule an employee if she rejects the accommodation. Specific regulations address some of these hazards with regard to pregnant women and mandate actions by the employer. See https://www.osha.gov/SLTC/reproductivehazards/standards.html; and https://www.osha.gov/SLTC/radiationionizing/pregnantworkers.html.
Changes to Protective Equipment
Because of physical changes to the body during pregnancy which may necessitate new safety protections, employers must consider some workplace safety equipment changes to protect and accommodate pregnant employees. Personal Protective Equipment, such as a harness for a personal fall arrest system, may no longer fit a pregnant employee or may have the potential to cause unnecessary harm to a worker or their developing baby. Similarly, gloves, sleeves, helmets, or specialized boots may need to be replaced by the employer, with the assistance of the employee to ensure a proper fit.
Respirators present a trickier question. If an employee passed a medical evaluation and fit test before becoming pregnant, she may present different medical issues with using a respirator and the respirator may no longer fit properly. Employers should contact their medical professional to help coordinate any respirator use by pregnant employees.
Disclosure and Voluntary Accommodations
NIOSH recommends that a pregnant employee discuss possible job hazards with the employer and their doctor as soon as possible after learning about the pregnancy. NIOSH suggests that many pregnant women adjust their job duties temporarily, or take extra steps to protect themselves.
The ADA, as well as various state laws, also requires employers provide accommodations to employees with qualifying pregnancy-related disabilities, upon becoming aware that employees are in need of such an accommodation. Although employees should be expected to notify their employers of their need for a pregnancy-related accommodation, there are no “magic words” that trigger an employer’s obligation under the ADA. Therefore, managers should be well trained to identify and properly inquire when a pregnancy-related accommodation may be needed, and how to appropriately engage in the interactive process, both under the ADA and any applicable state laws.
For example, if employers are concerned about exposures to pregnant employees, and the employee has reported that she is pregnant, the employer may ask the employee whether she needs any accommodations. If the employee is interested in an accommodation, the employer should engage in the interactive process, including a robust dialogue with the employee to determine what reasonable accommodations may be agreeable. If the employee can no longer perform the essential functions of their position, and there are no other reasonable accommodations available, reassignment to an open position, or if no open positions, a leave of absence, may be the only potential reasonable accommodations possible. However, it is important to be aware, an employee may not be forced to take a different position or a leave of absence as a reasonable accommodation, if there are other reasonable accommodations available.
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