Accommodations for a Pregnant Employee

The intended first paragraph for my new article was:

I’m hoping you noticed I haven’t posted an article in a while, because that means you might be reading them. I have a very good reason for my absence: my Department of Transportation Hazardous Materials Shipping Paper for over land shipping app completed testing and has now been placed on my NEW STORE PAGE for a ridiculously low subscription fee.

Well, NEW STORE PAGE was supposed to be a link to the page! Yay. After I finished the article, pictures and everything, I opened the page and it said page not found.

So, while I fix that I’m going to give you an example of what goes into my new Technical Paper products. I’m not talking about White Papers which contain a little handy technical knowledge hemmed in with advertising. I’m talking about a resource for the average Safety Manager who did not spend a lot of time in Chemistry classes. I took my strong chemistry background, my classes in Industrial Hygiene, and years of experience answering questions from Safety Managers and helping employers manage their chemical hazards and compliance.

Technical Paper topics include:

Chemical Hazards

o?? Absorbs through skin

o?? Carcinogen

o?? Combustible Dust

o?? Corrosive

o?? Explosive

o?? Flammable

o?? Toxic

o?? Reactive

o?? Reproductive

o?? Sensitizer

Supportive info

o?? Chemical information

o?? Definitions

o?? Deciphering Geek Speak

o?? Hazard Recognition and Control

o?? Need to Know

o?? Safety Data Sheets

Each Chemical Hazard Technical Paper has the same format, starting with some background on the chemical hazard and how it works, followed by where to look on the SDS to judge how hazardous the chemical is, through management of hazardous effects, to storage and on to examples of the hazardous chemical used in industry with some variations.

Technical Papers are not designed to sit down and study the Hazard. They are designed to be fast access reference material for the active Safety Manager. Review the Paper to be sure the chemical is stored properly. New hazard coming in? Buy the Technical Paper to see what you need to prepare to work and manage the chemical safely. The papers range from 12 to 30 odd pages long single spaced. I’m adding pictures, modifying the formatting, and increasing the space between the sentences to make it look less intimidating, so they will be a little longer.

All but Sensitizer and Reproductive Hazard Papers have been peer reviewed. Sensitizer is in the process of being reviewed by a chemical engineer I met at a church event last Saturday. Reproductive Hazard is not ready for review quite yet. I wanted more information on during pregnancy hazards before I sent it out for review. Since I was working on that earlier today I decided to put that information into this article. Keep in mind, this is just adding a little more information about a specific workplace hazard to an existing Paper. I’ll have to go through the Paper to see what is already there and how to add the new information without having to rewrite the dang thing. My research found a lot of regulations that may or may not end up in the Paper.

Accommodations for a Pregnant Employee

According to the Center for Disease Control more than 50% of American women remain employed full time during pregnancy where physical activity on the job is the main contributor to their overall physical activity. Not only are Occupational Safety and Health Administration or American Conference of Governmental Industrial Hygienist exposure limits not set for the safety of pregnant working women, they aren’t even set for working women, middle aged, or nearing retirement workers because, for some reason we couldn’t get any of those people to volunteer!

Exposure limits, such as Permissible Exposure Limits, are set for the average sized, healthy, 18–20-year-old male. These are the guys in the military who made themselves available to use as guinea pigs. In the United States, occupational safety and health as we know it started in the Air Force and we’ve never really evolved beyond that when considering our exposure groups. In addition to the problem of testing on the ‘immortal’ youth reproductive toxins, like carcinogens, have effects that aren’t recognized right away, making it hard to trace back to a specific exposure.

As early as 1921 damage to the fetus of pregnant workers was recognized as an occupational hazard in the article “The Pregnant Woman in Industry” in the Journal of Industrial Hygiene.? The Pregnant Workers Fairness Act (PWFA) went into effect on June 27, 2023 and employers should ensure they have the most up to date posters, available at this link. Resources for the employer and employee can be found on the Equal Employment Opportunity Commission (EEOC) via this link. More than 30 states and cities already have laws that require protections equal to or greater than the PWFA. This Act applies to both public and private workplaces with 15 or more employees. It also applies to employers in Congress, Federal agencies, employment agencies and labor organizations.

The PWFA allows the EEOC to enforce the requirement that employers provide “reasonable accommodation” for job applicants or employees with physical or mental limitations related to, affected by, or caused by:

* Maternal health

*Pregnancy

*Childbirth

*Post Partum duration

*Medical conditions related to the above:

o?? Musculoskeletal conditions such as functionally limiting pelvic girdle pain

o?? Hypertension disorders

o?? Pre-eclampsia

o?? Miscarriage

o?? Pre-term delivery

Unless the accommodation will cause the employer an “undue hardship” which is defined as an accommodation that causes significant difficulty or expense. Keep in mind that reasonable accommodations include those made for other equivalently disabled workers must also be applied for pregnant workers. For example, having adjusted a job to reduce the weight of packages that must be lifted during the shift for a worker with a back injury to meet physician prescribed requirements indicates it would not be an undue hardship to reduce the weight of packages for a pregnant worker who has been similarly limited by her physician as it would adversely affect her health or the health of the baby.

Even before a pregnancy starts to show hormonal changes in the ligaments and joints in the spine can make a pregnant person more prone to musculoskeletal injury from job demands. During late pregnancy changes in the body size and weight can affect balance increasing the risk for falls. The National Institute for Occupational Safety and Health (NIOSH) has a document called Provisional Recommended Weight Limits for Lifting at Work During Pregnancy. It is intended to go with the pregnant woman to her doctor for discussion after which the recommendations should be communicated to the Safety Manager and worker’s Supervisor.

Workplace conditions that could become hazardous as the pregnancy progresses include:

*Prolonged standing, 3 hours or more

*Prolonged sitting

*Prolonged walking

*Frequent stooping, bending, or squatting

*Crawling

*Lifting heavy objects from the floor

*Lifting heavy objects while bending or reaching

*Lifting overhead or reaching

*Loss of balance due to center of mass changes

*Increased risk of musculoskeletal injuries due to changes in body size, weight, and center of mass, awkward postures to accommodate girth

*High physical demands from job duties, such as repeatedly bending at the waist

*Contact stress- pressure on a person’s body from contact with an object. Machine, or piece of equipment

*Lifting objects weighing more than 22lbs (a CDC identified risk factor)

*Exposure to carcinogenic, mutagenic, and reproductive hazard chemicals

*Ill-fitting PPE, such as a Tyvek suit that no longer closes over the belly, changes to respirator fit due to facial changes

o?? Note: respirators and pregnancy can both make the mother work harder to breath. It would be a good idea to investigate moving the employee to a non-respiratory hazard area or providing a hood Powered Air Purifying Respirator.

*Lack of accommodating the need to urinate more frequently can lead to bladder infections and other problems

*Lack of accommodating the need to eat smaller portions and, therefore, eat more frequently to avoid blood sugar crashes

*Certain chemicals are more hazardous to the mother during pregnancy and some are hazardous

o?? Pesticides- miscarriage and birth defects, can get into breast milk, can cause learning or developmental disabilities in children

*Non ionizing radiation can cause localized heat inside the body (does not include computer screens microwaves, or cell phones)

Did you know that loud noise can damage a developing fetus’ hearing? The ears develop by the 5th month and the baby begins responding to noises in the late 6th, early 7th, month. Granted, the noise has to get through the mother’s body and amniotic fluid that inside exposures will be less than for the mother. Even so, pregnant women should not routinely be exposed to noise levels at or above 115dB (chainsaw level).

“Reasonable Accommodation” are changes that can be made so that the work does not adversely affect the mother or the fetus.? The EEOC has the following examples on their webpage:

*Additional, longer, or more flexible breaks to drink water, eat, rest, or use the restroom;

*Changing food or drink policies to allow for a water bottle or food;

*Changing equipment, devices, or workstations, such as providing a stool to sit on, or a way to do work while standing;

*Changing a uniform or dress code or providing safety equipment that fits;

*Changing a work schedule, such as having shorter hours, part-time work, or a later start time;

*Telework;

*Temporary reassignment;

*Temporary suspension of one or more essential functions of a job;

*Leave for health care appointments;

*Light duty or help with lifting or other manual labor; or

*Leave to recover from childbirth or other medical conditions related to pregnancy or childbirth.

And a private place to express breast milk to reduce discomfort. As you can see, the needs of the pregnant mother will change over the course of the pregnancy and the employer is required to keep up with those changes. For example, providing safety equipment that fits won’t start until the belly has trouble fitting into the current equipment.

The employer is required to recognize that a worker going through a perfectly natural, and temporary, human condition must have a new, and temporary, Job Hazard Analysis. Pregnancy creates an entirely new set of ‘rules’ regarding what the employee can do safely and what she cannot, whether she thinks she can or not. The accommodations are similar to a worker returning from an illness or injury because the accommodations are temporary and the valuable worker will soon return to full capacity.

A smart employer will make accommodations to keep an experienced, reliable, and therefore valuable employee. The employee wants to keep her job that provides her with:

·???????? A sense of normalcy,

·???????? Self-worth,

·???????? Access to work friends and work community support

So, we have a motivated employer and a motivated employee. The employee shall provide her doctor with an honest description of her capabilities, before, during, and after the pregnancy. She must communicate any work restrictions required by her doctor to her employer in a timely manner. If she does not do so her employer is still required to conduct a Job Hazard Analysis to protect the woman and her baby from standard pregnancy hazards in the workplace.

Best practice is to create an environment where women feel comfortable coming forward very early in their pregnancy whereupon an action group consisting of the employee, the Safety Manager, any medical staff on-site, and the Supervisor can identify:

*Conditions in the employee’s work environment that may create hazards to the mother or fetus

*Task requirements such as reaching, lifting, bending, etc.

*Work restrictions and when in the pregnancy they would be expected to begin?so that accommodations are readily available as needed.

All must keep in mind that, during the pregnancy and recovery, her capabilities will gradually change. Even though the pregnancy will reduce lifting, and other, capabilities, variably over the 9-month period exactly by how much and when will be greatly dependent upon the physiology and capabilities of the employee at the onset of pregnancy. This is why fostering an environment where the employee feels comfortable having her maternity doctor talk with the Safety Manager is very important.

Regulations on Reproduction and Discrimination

This information comes from the Federal government’ eeoc.gov website which amends Title VII of the Civil Rights Act of 1964 to include amendments from the PDA of 1978. In this case PDA doesn’t stand for Public Display of Affection, that came much earlier. It stands for the Pregnancy Discrimination Act which added the following to the PWFA:

*Expands the definition of Sex Discrimination to include:

o?? Pregnancy

o?? Childbirth

o?? Related medical conditions

*Women who are pregnant or affected by pregnancy-related conditions must be treated in the same manner in all terms and conditions of employment as other applicants or employees with similar abilities or limitations

*Employers are prohibited from refusing to hire a woman because of a pregnancy related condition as long as she is able to perform the major functions of her job

*Employers are prohibited from treating an applicant or worker differently on the basis of pregnancy, childbirth, etc. for any employment purpose

*Employers shall provide a work environment free of harassment based on pregnancy, childbirth, or related medical conditions. An employer's failure to do so violates the statute. Liability can result from the conduct of a supervisor, co-workers, or non-employees such as customers or business partners over whom the employer has some control

*Employers may not single out pregnancy related conditions for special procedures to determine an employee’s ability to work unless the same is required of all its employees to submit a doctor’s statement concerning their inability to work before granting leave or paying sick benefits

*Where an employer provides temporarily disabled employees with modified tasks, alternative assignments, or disability leave or leave without pay then they must also be offered to the pregnant worker

*If an employer provides any benefits to workers on leave, they must also be provided to those on leave for pregnancy related conditions

*Any health insurance provided by an employer must cover expenses for pregnancy related conditions on the same basis as costs for other medical conditions.? An employer need not provide health insurance for expenses arising from abortion, except where the life of the mother is endangered

o?? Pregnancy related expenses should be reimbursed exactly as those incurred for other medical conditions, whether payment is on a fixed basis or a percentage of reasonable-and-customary-charge basis. The amounts payable by the insurance provider can be limited only to the same extent as amounts payable for other conditions. No additional, increased or larger deductible can be imposed.

*Pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, her employer may not require her to remain on leave until the baby's birth. An employer also may not have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth. Employers must hold open a job for a pregnancy-related absence the same length of time they would hold jobs open for employees on sick or disability leave.

Title VII expands discrimination based on gender to include the various stages of pregnancy:

*Current pregnancy; you can’t fire a woman for getting pregnant.

o??? You must be aware of, and prevent, harassment of pregnant women, women with pregnancy complications, women who have had abortions, or who have had babies.

*Past pregnancy;? you can’t fire her right after giving birth.

*Potential pregnancy; you can’t hire a male over a more, or equally, qualified woman just because she might get pregnant.

o? “An employer's concern about risks to the employee or her fetus will rarely, if ever, justify sex-specific job restrictions for a woman with childbearing capacity.”

*Medical condition related to pregnancy or childbirth?including?breastfeeding/lactation;

o??? “Aside from protections under Title VII, female employees who are breastfeeding also have rights under other laws, including a provision of the Patient Protection and Affordable Care Act that requires employers to provide reasonable break time and a private place for hourly employees who are breastfeeding to express milk.”

o??? “Title VII prohibits discrimination based on pregnancy, childbirth, or a related medical condition. Thus, an employer may not discriminate against a woman with a medical condition relating to pregnancy or childbirth and must treat her the same as others who are similar in their ability or inability to work but are not affected by pregnancy, childbirth, or related medical conditions.”

*Having?or choosing not to have?an abortion; is not a fire-able offense.? It is the employer’s choice whether to cover it in the employer provided insurance package.

*?Birth control (Contraception).hiring someone because they say they are on, and will continue to take, birth control (basically, if the conversation goes there you are already in trouble) over someone who says nothing or says they are open to pregnancy is inadvisable.? On the other hand:

o??? “Employment decisions related to infertility treatments implicate Title VII under limited circumstances. Because surgical impregnation is intrinsically tied to a woman's childbearing capacity, an inference of unlawful sex discrimination may be raised if, for example, an employee is penalized for taking time off from work to undergo such a procedure.[35]?In contrast, with respect to the exclusion of infertility from employer-provided health insurance, courts have generally held that exclusions of all infertility coverage for all employees is gender neutral and does not violate Title VII.[36]?Title VII may be implicated by exclusions of particular treatments that apply only to one gender.”

*The Affordable Care Act of 2010 amended the 1938 Fair Labor Standards Act to include the PUMP Act that applies to employers with 50 or more employees who are not in the following industries:

o?? Airline

o?? Railroad

o?? Motorcoach carrier

?The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP) requires covered employers to provide reasonable break time for new mothers to express breast milk for up to one year after the child’s birth. In addition to adequate time the employer is also required to provide a clean space, not in the bathroom, with privacy where the mother can perform this task. It should be noted that the exception for employers with less than 50 employees requires the employer be able to demonstrate that provision of such time and space would place an undue hardship on the business.

*While the PUMP act does not require employers to pay the employee while they are expressing milk some state laws provide for:

o?? Compensated break time

o?? Break time for exempt employees

o?? Break time beyond one year after the child’s birth

?