Puzzle pieces reshaping women’s reproductive health

EPA’s TSCA
    “Procedures for Chemical Risk Evaluation Under the Toxic Substances Control Act” (TSCA), with final rule effective on July 2, 2024, includes the concept of “potentially exposed or susceptible subpopulation” (PESS). PESS includes workers but also includes “children and pregnant women.”
    TSCA chemical risk evaluations have led to the recent development of workplace exposure limits known as the ECEL and NCEL. These new exposure limits are equivalent to the European Union’s occupational DNELs (derived no effect limits) defined as “the level of exposure above which humans should not be exposed.” Each of the EU’s regulatory frameworks for risk management for chemicals considers developmental toxicity e.g., unborn children and child health development.

EEOC favored over OSHA?
    OSHA’s 1978 lead standard and the EEOC’s 1978 Pregnancy Discrimination Act were on a collision course since their birth. The collision culminated in the 1991 US Supreme Court decision in UAW v Johnson Controls. Legal strategists debated whether it was best to argue the Johnson case on the framework of OSHA (workplace health) or EEOC (discrimination) merits. Plaintiff strategists believed that public opinion and legal arguments would greatly favor the discrimination route. The Johnson court unanimously ruled that “fetal protection programs” i.e., women must prove they are infertile before being allowed to work with lead, violated Title VII, as amended by the PDA, and were illegal.

Tort liability
    Johnson court records confirm that the driving force for employer fetal protection programs was fear of tort lawsuits if a child was harmed because of maternal lead exposure. The court addressed this concern by stating “If under general tort principles, Title VII bans sex-specific fetal protection policies, the employer fully informs the women of the risk, and the employer has not acted negligently, the basis for holding an employer liable seems remote at best.”

Tort negligence
    As workplace reproductive hazards move outside the umbrella of OSHA administrative law and its companion workers’ compensation system, tort negligence is there to take their place. To win a tort lawsuit, generally four major hurdles must be cleared by a plaintiff. These hurdles are duty; breach of duty; causation; and damages.
    Employers have a duty under OSHA to provide a workplace free from recognize hazards. Similar duty may be found in many US laws, such as EPA’s TSCA. Recognition of reproductive health hazards comes from many sources such as new information coming from NIOSH and the PWFA. Causation used to be a formidable hurdle to clear for the plaintiff, with the understanding that association is not necessarily the cause. Development of ECELs, NCELs, and DNELs, among other similar limits, along with growth of epidemiological and occupational health studies has greatly lowered the causation bar. Concepts such as the Value of a Statistical Life now allow damages to easily involve tens of millions of dollars.

Cost of lawsuits
    Cost and compensation in the US tort system amounted to $529 billion in 2022, equivalent to 2.1 percent of the US GDP (See US Chamber of Commerce’s November 20, 2024, report “The Hidden Costs of Lawsuits Continue to Grow”). The Chamber predicts that “If current trends continue, the costs of lawsuits will continue to skyrocket, with overall tort costs rising to over $900 billion by 2030.” Tort reform is unlikely to succeed under Trump’s second term in office.

Risk matrix
    A dollar loss risk should be incorporated into your company’s frequency and severity risk matrix. You should consult with your company’s attorney to determine if any of the puzzle pieces in this article pose significant risk and warrant intervention. One way to minimize risk is to carefully review NIOSH’s recent information on reproductive health hazards along with reading the PWFA’s final rules that were effective June 18, 2024. Communicate any hazards found at your workplace, as appropriate.