practices
MANAGING BEST
By Dan Markiewicz
U.S. employers need to embrace concepts of PWFA
G
en Z is the largest generation in American history. The oldest of this generation have entered the workforce. A lot is being expected of Gen Z to widen the base of the U.S.’s population pyramid. Boomers, Gen X, and millennials to date overall have failed to meet the replacement rate on average at 2.1 children. The U.S.’s replacement rate now stands at 1.7. If the rate falls below 1.5, the future U.S. as an old population with a small workforce with shrinking taxes and the elderly as a huge tax burden, becomes extremely difficult to avoid.
Gen Z women having more children, however, is not the only objective. Women must also remain in the workforce to contribute to the tax base. To resolve the conflict of health concerns for a pregnant worker and her future child from workplace hazards, rich economies have established legislation to make the workplace compatible for reproductive and developmental health.
In 1992, for example, the European Commission established the Pregnant Workers Directive. Many countries outside the EU sought conformance with the International Labour Organization’s 2000 Maternity Protection Convention. The U.S. joined other rich nations in making the workplace compatible for reproductive and developmental health through the December 2022 passage of the federal Pregnant Workers Fairness Act (PWFA), that this column has covered extensively over the past decade. 50 for 50
If our nation seeks to remain the richest on the planet then U.S. employers must embrace the concepts of the PWFA. Recent events have left me troubled and concerned for the success of the PWFA. For example, while attending a conference this past February, I asked 50 of our nation’s OHS leaders: “What have each of you been doing to support the PWFA?” 50 for 50 claimed that they had not heard of the PWFA. Body language, however, suggested that some, if not most, were likely aware of the PWFA but were reluctant to discuss the topic with a stranger. This was a very interesting discovery.
Photo: hobo_018 / E+ via Getty Images.
Stalled PWFA
Be aware that the bi-partisan supported PWFA was signed into law on December 29, 2022, and became effective in June 2023. The PWFA language at SEC.2000gg-3(a) EEOC rulemaking states that “Not later than 1 year after December 29, 2022, the Commission shall issue regulations” … to carry out the law. By now you should be aware that the statutory deadline of December 29, 2023, was missed. What has happened to bring publication of the final regulations to a halt? In short, a pro-life v pro-choice debate on the PWFA regs is ongoing, with an uncertain end.
Pro-choice v. Pro-life
The PWFA proposed rules left the decision of whether an accommodation is needed for a limitation related to pregnancy, childbirth, or related medical condition solely in the hands of the pregnant worker. Proposed rule examples include the worker’s need or problem relating to “maintaining the health of her pregnancy” or “increased risk to her pregnancy” to mean protection for her future child’s health. The final choice of risk acceptance for the pregnant worker and her future child, however, is mostly for the pregnant worker alone to make. Viewed through this lens, the PWFA proposed regs may be labeled a pro-choice law.
Pro-life organizations and like-minded individuals are highly concerned that a pregnant worker may request an accommodation, such as brief leave, to address the need for conditions such as abortion, IVF, surrogacy, artificial contraception, and sterilization that pro-life people may consider to be morally illicit procedures. The PWFA proposed rules do allow accommodations i.e., leave for these procedures but the worker is under no obligation to inform her employer of the specifics for her leave request.
Pro-life actions
Following the U.S. Supreme Court’s June 2022 overturn of Roe v Wade denying there was a Constitutional right to abortion, pro-life states are taking actions (as anticipated) to establish pro-life law and hamper existing pro-choice type laws, such as the PWFA. The following are examples from February 2024:
• A federal judge in Texas blocked enforcement of the PWFA for Texas state employees under the premise that the law violated the U.S. Constitution.|
• Alabama’s Supreme Court ruled that frozen embryos used during IVF, are “children” and those who destroy these embryos can be held liable for wrongful death.
• The Missouri legislature is debating “Jaxx’s Law.” Jaxx’s law is a shortly worded law to establish that an unborn child in Missouri cannot be an employee.
Background for Jaxx’s Law: Missouri Department of Transportation (MoDOT) 25-year-old Gen Z worker, Kaitlyn Anderson, was 6 months pregnant when a driver drove through barricades and killed Kaitlyn and her future son, that she named Jaxx. MoDOT claimed that Jaxx was their employee and any liability for his death should be addressed through Missouri’s workers’ compensation law. Section 188.015 of Missouri law, however, defines “unborn child” as the “offspring of human beings from the moment of conception until birth and at every stage of its biological development, including human conceptus, zygote, morula, blastocyst, embryo, and fetus.”
Because the timing of the PWFA comes during a U.S. presidential election year, the politics of the above are certain to heat up.
Reproductive challenges
The above is only the tip of the iceberg for Gen Z challenges for their reproductive and development health. Run a web search for the following question: Is infant mortality, maternal mortality, premature birth, low birth rate, miscarriage rates, infertility rates, and developmental disabilities on the rise today in the U.S.? Why are girls today hitting puberty and starting their menstrual cycles months earlier than their mothers did? How many industrial chemicals, microplastics, and other “pollutants” with endocrine disrupting abilities are found in today’s newborns?
When you find the answers to the above, ask yourself “where’s the outrage?” Unfortunately, outrage may be analogous to the frog in boiling water analogy. Realization of the enormity of the problem often comes too late – especially if you’re a Boomer, Gen X, or millennial that skirted past these problems.
Support for Gen Z
All OHS pros should support the Gen Z worker in meeting reproductive and developmental challenges. This support is not so much about fairness or justice between generations. The support should come from corporate sustainability concepts and objectives and the economics of doing business. Support Gen Z in having more healthy and happy kids to help the US to maintain its position as the richest nation on this planet.
Dan Markiewicz, MS, CIH, CSP, CHMM, is an independent environmental health and safety consultant. He can be reached at (419) 356-3768 or by email at dan.markiewicz@gmail.com.
April 2024
VOL. 58 NO. 3