Pregnancy Rights

What is the name of your state? CA

First of all I apologize if this is not the right section to post this question.

My wife work as a Chemist and part of the job is doing lab work aside from doing data entry necessary for analysis. Recently, she got pregnant and informed her work. Initially she obtained a Drs note stating that if she is to continue working in lab evironment, her work must provide her with an OSHA approved respirator/mask. Her HR dept agreed and she was approved to order a mask. During this time her Managers decided to not take any risk and informed her she can do non-lab work until she delivers. Ofcourse we were elated. The following day HR informed her she "needs" to be in the lab as it is part of her work and she will talk to her Managers to reinstate her to do lab work. Today, she was informed by her Managers that per HR she must continue to do lab work because from past experience with previous pregnancies nothing happened.

My wife has done her research and has a list of chemicals she works with and some of them can be harmful to unborn fetus. Furthermore, when she was obtaining the mask the person who worked at the place informed her that the mask will not filter out everything that she worked with. Especially powdered materials. It was only designed for vapor. He said that for her to be protected she must get many more filters for the same mask. These statement is confirmed by a written document that came with the mask.

She contaced her Dr today and got another note stating "It is adviceable" that she works at a nonlab environment.

The short of it is, we need to know what her rights are. Can they fire her? Can we lodge a complaint with the Labor Board citing discrimination? I just want to know what are all other options besides quitting.

Sorry for the long and winded post but I wanted to be clear as possible.

Thank you in advance.

Regards.

What was her employer's response to the latest physician's recommendation? What accommodations does her employer make for employees who require reassignment for short term disabilities? Has her employer refused to provide the necessary filters for the mask she has?

Her doctor's opinion that it is "advisable" for her to work in a non-lab environment is probably not strong enough.

With, I'm sure, the best of intentions, your wife's managers totally jumped the gun in deciding she should not be doing lab work while she's pregnant. (a) That IS discriminatory and (b) they're not doctors. HR responded appropriately by, I imagine, pointing that out to the managers; hence the subsequent change in the decision.

I agree that the note from the doctor saying it is not advisable for her to work in a lab environment is not explicit enough. Either she can or she can't.

Mitousmom:

1) The note will be presented to her employer tomorrow. 2) Her employer re-assigned their employee to a different task as they initially did for her but renegged with HR's interference. 3) We'll find out tomorrow what they will say or do with the latest Drs note.

Just to add, the note actually said "highly recommended and medically adviseable".

Beth3:

I see your point. However, to use your own argument HR are also not physicians therefore, they are not qualified to determined the risk associated with possible chemical/organic toxins in the lab and their potential hazardous effect to a pregnant woman.

One would think that as a company they will be lessening their liability and exposure by taking the safer route in accomodating to a Drs recommendation rather than taking risk in potentially ignoring an advice from a medical professional just because she is setting a presidence.

Thank you both for your opinions and thoughts. It is highly appreciated.

Regards.

The note needs to say that reassignment is medically necessary.

Update:

Upon presenting the second note which has the words "recommended and advisable", HR again has refused to back down and even made threatening reference to her job. HR stated that it's "her job" to be in the lab and said that the Drs Note is not good b/c it's not from a Worker's Comp DR. We looked at the company's employee handbook to see if we were inline with company policy. Here's what it says:

Pregnancy Disability-Related Leave and Transfer

4. Certification of a Need for Leave or Transfer

To support a request for a pregnancy disability; or (ii) your need to transfer or for another accommodation, you must present a written certification from your health care provider that contain the following information:

1) The date of which: (i) you became disabled; or (ii) your need to tranfer for another accommodation became medically advisable;

2)The probable duration of the period(s) of disability or your need to to transfer or for another accommodation; and

3) A statement that: (i) due to the disability, you are unable to perform one or more of the essential functions of your position without undue risk to yourself, the successful completion of your pregnancy or to other persons; or (ii) due to your pregnancy, transfer or another accommodation is medically advisable.

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It seems to me HR is out to get her for some reason or another.

I'm sorry, but I don't agree that HR is "out to get her".

Having a pregnant employee who works with chemicals that could be harmful is a damned-if-you-do, damned-if-you-don't situation for HR. No matter what action you take, there's very real danger of some kind of liabilty. If you move them, it's pregnancy discrimination. If you don't move them, a year down the line you get sued for potential birth defects.

There is no way for HR to win in a situation like this. I understand your position, believe me. But I understand theirs too. There isn't ANYTHING they can do that doesn't put them at risk for legal action.

So the best thing they can do is go STRICTLY by the book.

Federal EEO law doesn't require an employer to follow its own rules. It requires the employer to treat pregancy as it would any other short-term disability. Unless there is some indication that the employer accommodated by transfer someone with a short term disability simply based on "medical advice," you are probably not going to be able to argue that the employer's refusal to move your wife is illegal discrimination because of pregnancy.

If you move them, it's pregnancy discrimination

Click to expand...

It's not pregnancy discrimination if the employer moves the pregnant employee at her request and based on a determination that the move is medically necessary. You probably are thinking of the Supreme Court's decision in International Union, UAW v. Johnson Controls. The court said that the employer's excluding all women of childbearing age from certain jobs due to potential harm to a fetus was sex discrimination under Title VII. The Court said that the job posed risk did not justify excluding all fertile women from the position.

I agree that it's not discrimination if she is moved at her request. But since when has that stopped anyone from claiming it?

Trust me, I know more about this situation than I want to.

So, let me understand this. Bottom line is if my wife "request" to be moved and obtained a note stating "medically necessary", that will be enough to justify to move her out of a lab environment? I hardly doubt that will change anything. As HR already stated she will not honor her Drs note.

We want to do the right thing. But, it seems like HR is setting her up to either quit or be fired. Why do I say this?

1) HR repeatedly states it's her job to be in the lab ---> The is half true. Her function is 50% admin and 50% lab work. Her manager already approved her to do admin work for the duration of her pregnancy. So, you can not argue she can't do alternative work.

2) HR wants her to tell her DR to invalidate the note. Sating her DR has no right to write that note and also that it's invalid anyway b/c it's not from a Worker's Comp Dr.

3) HR refuses to authorized any other filters for her. Basically she is implying that my wife has to work under the condition they presently have.

Who in the right mind work in a condition when a mask provided, will not filter all the hazardous chemical?

What options do we have? Since, we are unwilling to compromise the health of our unborn child. It seems to me we have two options 1) to voluntary quit or 2) refused to work in the lab that will give them excuse to fire her. No win situation for us except Legal Action if it comes to that.

Your wife could purchase and wear the additional filters she needs. She can probably include the cost on her federal tax return as a work related expense.

She can contact CA's DFEH and see if they can assist her. However, unless her employer has moved someone with a short term disability based on a physician's note that a move is medically advisable, it doesn't appear that her employer's actions violate federal law.