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, attorneys from the law firm of Seyfarth Shaw stress to employers.
OSHA declares that “exposure to reproductive hazards in the workplace is an increasing health concern.” To learn about these points of concern, consult the National Institute for Occupational Safety and Health's information resources.
For example, a fetus might be more vulnerable to certain chemicals, particularly in early stages of pregnancy when the baby’s organs are developing. Changes in a pregnant employee’s immune system, lung capacity and even ligaments can boost the risk of injury or illness due to certain hazards.
“Employers must protect their employees (including more susceptible pregnant employees) and prevent exposures to these known hazards,” the Seyfarth Shaw attorneys say, but must do so in a manner that does not endanger these women’s livelihoods.
“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,” the attorneys stress.
Federal and state laws protect pregnant employees in the workplace. Federal law prohibits employers from requiring employees to accept accommodations they do not agree to (such as a forced reassignment or diminishing of job duties).
To the extent that an employer changes a job assignment or removes a woman from a desirable position because she is pregnant without a specific accommodation request, and in some cases, agreement from the employee, the employer could face a claim of gender or pregnancy discrimination.
In situations where there is no medically-documented basis that exposure might injure a fetus, a pregnant or potentially pregnant employee’s perceived susceptibility to a hazard probably would not be viewed a legitimate reason to involuntarily demote, take away opportunities or discharge her.
Employers can offer pregnant workers the opportunity to avoid exposure, but job assignment and removal from duty should not be forced upon a worker because she is pregnant.
Some potential chemical and radiation exposures may force an employer to make involuntary reassignments, the attorneys explain.
NIOSH recommends that a pregnant employee discuss possible job hazards with her employer and her doctor as soon as possible after learning about the pregnancy, adjust her job duties temporarily or take extra steps to protect themselves.
Although employees should be expected to notify employers of their need for accommodations, there are no “magic words” that trigger an employer’s obligation, the attorneys note. Managers need to be trained to identify and properly inquire when an accommodation may be needed.
For example, if an employer is concerned about exposure for a pregnant worker, she may be asked whether she needs any accommodations. If she says yes, then the employer should engage in 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 her position, and there are no reasonable accommodations available, reassignment to an open position – or if there are no open positions, a leave of absence – may be the only reasonable accommodations available.
However, if other accommodations are available, you can’t force her to take another position or leave.