When you started your business, there is no doubt you found yourself asking many questions. You probably still encounter new situations every day and have to find answers on topics you have never considered before. Here is another one! Thank goodness for our HR experts and their reliable answers.
We are concerned about protecting our outdoor workers against mosquito bites and the Zika virus. Is there harm in educating pregnant employees about the risks and suggesting that pregnant workers who feel at risk consider reassignment?
Educating the entire workforce about potential risks and dangers is always a best practice in the workplace. The issue of Zika and pregnant women is not whether there is harm in educating employees about risks or suggesting voluntary reassignments. The issue is pregnancy discrimination and whether an employer could either prohibit travel or take adverse actions against pregnant employees in an effort to protect them. However, Title VII, the Equal Employment Opportunity Commission (EEOC), and the Supreme Court prohibit employers from taking adverse action against women to protect against reproductive health risks. 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.
For instance, the Supreme Court held that a battery manufacturing company violated Title VII by implementing a workplace policy that broadly excluded all fertile women, but did not similarly exclude fertile men, from jobs where lead levels were defined as excessive and thereby potentially posed hazards to unborn children. The policy created a classification on the basis of sex because it denied fertile women a choice given to fertile men as to whether they wished to risk their reproductive health for a particular job. Accordingly, the policy could only be justified if the employer proved that female infertility was a bona fide occupational qualification. The Supreme Court also went on to explain that decisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them rather than to the employers who hire those parents.
Any and all employees who feel at risk should be provided the opportunity to request, consider, and/or discuss a voluntary reassignment rather than an employer making such a suggestion to only pregnant employees.
Employers may also direct employees to the Centers for Disease Control and Prevention website for further guidance, where specific information is provided on the virus and pregnancy.
(Originally posted in the ThinkHr Workplace August 16, 2016.)