Stakeholder comments to the EEOC on the proposed rules to carry out requirements of the Pregnant Workers Fairness Act (PWFA) grew from about 45,000 to over 100,000 between October 3-10, 2023. The most important comments arrived on the deadline day of October 10th.
Skilled participants in rulemaking don’t want their views to be known too quickly, otherwise opponents of these views may place comments on the public record that may weaken, defeat, or complicate their position. Once final rules are issued, in this case on or before December 29, 2023, rescinding or revising any rule becomes a lengthy and often difficult process.
Congress and PPE
Stakeholders should listen closely when Congress suggests rules to carry out its laws. Over 80 members of the U.S. Congress signed onto an October 10, 2023, letter (waited until the last moment) to express their interest of what should become PWFA final rules.1 Congress suggested that among the final rules that a pregnant worker should not be required to submit documentation to support their request for “personal protective equipment” used for reasonable accommodation(s).
Congress and partners
Congress often acts as a leadoff hitter to get an idea on base while heavy hitters come later to move the idea across home plate. A Better Balance (ABB) is a heavy hitter and is the leading legal advocate organization for the PWFA. ABB’s public comments on the proposed PWFA final rules were also received by the EEOC on the deadline day.2
ABB’s comments complement and detail the views of Congress. Where the comments from Congress are brief at slightly over five pages, ABB’s comments are expansive at almost 100 pages long with nearly 200 references, footnotes, and other detail. For example, where Congress mentions “Providing personal protective equipment,” ABB expands this concept to read “Providing an employee personal protective equipment, such as gloves, goggles, earplugs, hardhats, masks, and respirators.”
PPE conundrum
Where Congress and ABB perceive worker use of PPE to be a simple process, it is not. Regarding workplace PPE, OSHA 1910.132(d)(2) states, “The employer shall verify that the required workplace hazard assessment has been performed through a written certification that identifies the workplace evaluated; the person certifying that the evaluation has been performed; the date(s) of the hazard assessment; and, which identifies the document as a certification of hazard assessment.”
The more you know of this issue, the more complex it becomes. Neither Congress nor ABB, nor any of the other 100,000+ final rule commenters suggest that compliance with the PWFA should negate compliance with other laws such as OSHA.
PWFA and OSHA are particularly incompatible with key aspects of PPE use. For example, OSHA expects a hazard assessment to be performed before PPE is issued. Rules for the PWFA, however, will clearly state that an employer must not anticipate the needs of the pregnant worker.
Need for PPE
ABB’s report includes examples where a pregnant worker may need PPE. For example, the ABB report includes the following statement, “Women exposed to high noise levels during pregnancy are also at significantly higher risk for having an SGA [Small for Gestational Age] newborn and high blood pressure during pregnancy.” When the ABB noise reference is followed to its source, the “high” noise levels begin at 80 dB. Hearing protection could eliminate the SGA and high blood pressure concerns if the proper PPE is fitted and maintained. OSH pros must go beyond OSHA and hearing loss to achieve this health protection objective.
Toxins
The PWFA and PPE waters become muddier when Congress and ABB, describe “toxins.” For example, where Congress mentions “Moving a workstation … away from toxins.” ABB expands the concept by stating “Moving an employee’s workstation … away from heat, fumes, or other environmental hazards.”
For various reasons that are lengthy to explain, a clarity of definition for concepts such as what Congress perceives as toxins must appear in PWFA final rules. Anticipating vagueness in this area, my October 3, 2023, comments on the final rules directed EEOC to OSHA 29 CFR 1910.1020(c)(13) that defines “Toxic substance or harmful physical agent” to mean “any chemical substance, biological agent (bacteria, virus, fungus, etc.) or physical stress (noise, heat cold, vibration, repetitive motion, ionizing radiation, hypo-or-hyperbaric pressure, etc.),” which are further described at 29 CFR 1910.1020 (c)(13)(i) – 1910.1020(e)(13(iii). Imagine the PPE that is used to remedy health concerns among these many hazards.
Dose
A clarity of definition, however, is only the beginning of the problem where a pregnant worker is exposed to toxic substances or harmful physical agents. How far does a workstation need to be away from toxins before there is no cause for concern? I strongly believe that a health care provider (that I suggested to the EEOC should include an Industrial Hygienist) must suggest a safe dose for a toxic substance or harmful physical agent based on science. Basing the answer on employee judgment, such as lack of odor, or what the worker learned on the Internet is foolhardy. Be aware, once precedent is based on employee judgement, it may be very difficult to argue reasonableness in the future. Congress and the ABB, however, believe the pregnant worker should make this judgment without documentation.
Slippery slope
Many pregnant workers experience “morning sickness" or episodes of nausea from odors that were not a problem pre-pregnancy. A pregnant worker may search online to find half-mask e.g., disposable devices, such as 3M 8247 Organic Vapor Respirator, that has a carbon layer that filters out nuisance-level organic vapors i.e., odors. What interactive communication, if any, do you provide to a pregnant worker who suggests the 3M 8247 mask or equivalent to protect her health, as well as protect the health of her pregnancy? What slippery slope considerations do you explain to the employer, if any?
OSHA + PWFA
Someone is ahead in this game. OSHA released the Fact Sheet: Prevent Heat Illness Among Pregnant Workers during October 2023.3 I highly encourage you to review the Fact Sheet. OSHA has limited authority to require most of the protections, such as dose, from heat that the agency suggests. OSHA particularly has no authority to address “adverse pregnancy outcomes” as noted in the document. However, see the bottom of the Fact Sheet “Know your rights”. OSHA directs pregnant workers to the PWFA. I suspect that OSHA will use the PWFA to the agency’s advantage in many cases to come.
Get prepared!
I concur with the ABB that the PWFA is an “expansive, groundbreaking law that requires a robust rule to effectuate Congressional intent fully and faithfully.” Final rules will arrive on or before December 29, 2023. A few of the anticipated problems with these likely rules were presented in this article. I highly encourage every OSH pro to thoroughly read the final rules promptly after they are released. Prepare your employer and yourself accordingly.
