The Compliance Divas Podcast
Our podcast covers current topics such as infection prevention and control, OSHA and HIPAA compliance for dentistry. We discuss the latest regulatory information, answer frequently asked questions and give suggestions for dental practices to make compliance easy and sustainable. The Compliance Divas are a trusted source for consistent, accurate information based upon current guidelines, standards, science, and recommendations.
The Compliance Divas Podcast
#157 Dealing with Pregnant Workers in a Dental Office
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Recently, Walgreens was ordered to pay $205,000 in EEOC pregnancy and disability discrimination. This podcast focuses on dealing with pregnant workers, especially clinical personnel such as assistants, hygienists, and dentists who are working hands-on with patients day-to-day.
- American Dental Association Pregnancy Tips: https://bit.ly/3xEAgmh
- EEOC Pregnant Workers Fairness Act: https://bit.ly/3U0L1XH
- Pregnant Workers Fairness Act poster: https://bit.ly/3W5g0EK
Welcome. I'm Leslie Cannon. I'm Mary Gavoni.
SPEAKER_03I'm Linda Harvey. I'm Olivia Juan, and together we are the Compliance Divas. Welcome to the Compliance Divas podcast. My name is Olivia Juan, and I'll be your moderator today. In this episode, we're talking about dealing with pregnant workers in a dental office. Recently, Walgreens was ordered to pay $205,000 in EEOC pregnancy and disability discrimination lawsuit. Evidently, a Walgreens store located in Alexandria, Louisiana, refused to let an employee take emergency leave to seek medical attention. The pregnant employee suffered with diabetes and hypoglycemia and was even spotting. The store manager refused to let the employee leave until she found a replacement. The employee had no choice but to resign so that she could seek medical care. Unfortunately, the employee miscarried that day. Walgreens violated Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. So we thought, as the Compliance Divas, that this would be a good topic to discuss. Are you in compliance with state and federal laws? As the Compliance Divas, we bring clarity and simplicity by navigating regulatory compliance to keep you on course. Please subscribe to the Compliance Divas podcast by going through our website, thecompliancedivas.com, or through your favorite podcast channel. Any resources that we discuss during an episode will be available in the show notes. And while you're on the podcast, please leave a review. So let's talk to the divas. I get a lot of questions, and the divas do as well, when we're dealing with pregnant dental workers, particularly pregnant clinical workers. So I'd like to start off and interview Mary Gavoni, who has many, many years of experience of dealing with dental workers, and find out her take, especially having been an assistant and a hygienist. You know, what are your thoughts? And I'd like to focus, Mary, on radiographs, because we get that question a lot. Do you?
SPEAKER_02Yes. Um, Olivia, thank you. Um, I do get that question a lot, either from an employer or from a dental assistant who's pregnant. Do I need to be concerned about taking radiographs? Well, first and foremost, the practice needs to make sure that they're following all the safety guidelines, whether employees are pregnant or not, using the Alara principle, as low as reasonably achievable in terms of exposures, that everyone is trained appropriately, and that our equipment is functioning well. And also, an employer should have a policy in their employment manual or their employee manual on how they would deal with an employee who is pregnant and who maybe chooses not to take radiographs. And hopefully, there's another assistant who can come in if that employee is concerned and take radiographs when they need to. But the ADA has a couple of specific recommendations. And one is to provide a dosimeter badge for a pregnant employee. Some states require dosimetry for intra-oral radiographs, some only for extraoral radiographs. So you always have to check your state regulations to see what those requirements are. But if wearing a dosimetry badge helps to make that dental assistant feel more comfortable, gives them some peace of mind, that's a good idea. If that dental assistant is going to be exposing extra oral radiographs, specifically CBCT scans, then they may want to wear an X-ray shield, a lead apron while they're making those exposures, but also making sure you're the appropriate distance away. But the bottom line is employers need to acknowledge the concern of that dental assistant who is pregnant, who has concerns about taking radiographs, and make sure that they're meeting those concerns with all of the safety measures that they can provide.
SPEAKER_03Good points. And I appreciate you bringing up, Mary, about the dosimetry badges. It's even if it's not required, it's such a good risk management tool to prove that the worker was not overexposed to radiation. So that's a good point. Also, like how you mentioned about having some kind of policy. And I think that's why it's ever so important to have the job descriptions that list what the obligations of the clinical worker is. And I to do it easily, I just copy and paste from the board's website, you know, what's the scope of duties. And that makes a great way to build a job description, ensuring that you're within the scope of duties. And we want to make sure that it's part of their duties listed, uh, because it does cause a lot of problems when you have three workers that are pregnant and nobody wants to take x-rays. So it could be a big conflict. Uh, so thanks for sharing those points. I'd like to talk to Linda, who also has many, many years of experience of consulting and a hygiene background. What are some of the possible accommodations that an employer can come up with to accommodate pregnant workers?
SPEAKER_01Olivia, that's a good question because all employers in any any industry and category of your work in this country are required to provide reasonable accommodations. This is covered under the Pregnant Workers' Fairness Act that went into effect June 27th, 2023. Now, a reasonable accommodation means that there are that they will make changes to the work environment. So you're going to change some things from the way they usually are to make them a little bit different and easier for someone who's pregnant. However, unless that reasonable accommodation creates undue hardship, then the employer may not be able to make every single change to their work environment. But let's talk about some that are practical and could be possible depending upon each office, their location, and their setup. And I have seven that I'd like to share, Olivia. One is being able to sit or drink water. Well, for the most part, we can sit. We pregnant workers can sit during patient care. We're sitting during, you know, if you're a hygienist, we're sitting as an assistant and having water breaks. Even though OSHA says we cannot have food or drink in the operatories, you can certainly take an extra minute or two to go to the break room and have some water handy. If it's possible, perhaps the pregnant worker could have a closer parking spot. That depends on each office location and how the parking is arranged already. Because I know sometimes the parking is very close to begin with. Having flexible hours is another opportunity. And that may depend on the ability of the practice to be able to offer flexible hours. And certainly receiving appropriately sized uniforms and safety apparel is key. Olivia, I was in a practice, a very small practice in a rural uh community about a month ago. And there was an individual, it was a dental assistant, who was expecting that she was going to have the baby any day. She was there finishing up her last couple of days of work. And I noticed that her lab jacket didn't snap around her. So she hadn't been given appropriate sized apparel to protect her uniform. Certainly, someone can have some additional break time to use the restroom, sit down and eat. Um as I was sitting in the break room filling out a report, I I saw her running in there every 15 or 20 minutes to the restroom. So those kinds of things are just uh those are very reasonable. Of course, taking time off to recover from shallow birth is another reasonable accommodation. And that's a decision to be made between the uh worker's doctor and the employer, what can be done. And then can the individual be excused from strenuous activities, exposure to chemicals or things that are not safe. And other than um I think being able to sit during patient care, we don't have too many strenuous activities in a dental setting. You know, we're not on our feet all day long, we're not excessively walking or carrying heavy boxes. So um, but if there's something that could be identified, then certainly that could be a reasonable accommodation in their practice. So, Olivia, those are the seven tips that I would offer to all of our listeners in their practice, whether they're pregnant or whether they're an employer and having um to work with uh pregnant workers.
SPEAKER_03Excellent points, Linda. And to dovetail off of what you stated, I want to bring up that gluteraldehyde that's used in some offices as a cold sterile, is toxic. And the National Institute of Occupational Safety and Health, which is NIOSH, provides information, which you can access online to raise awareness about adverse health effects of this chemical. So if a pregnant worker is around this chemical, gluteraterhyde, gold that cold sterile, you may want to look at how you can either substitute or eliminate it. And really, anymore, it's disposable or it can go through the autoclave. So shouldn't see a lot of need for it or at all. And the other point you made about making sure the lab jacket fits, I too have seen that uh quite a bit where a pregnant worker has grown out of their uniform. So if they don't want to purchase cloth jackets, I get it, but they can certainly purchase for the employee disposable gowns that fit properly or an apron. And also wanted to mention that the federal law for the rule, the act that you pointed to, the federal pregnant workers' fairness act, applies to employers with 15 or more. And the same is true in Tennessee. We also have a counterpart, which is the Tennessee Pregnant Workers' Fairness Act. It applies to employers with 15 or more employees. And when I'm consulting with a law client, that's usually where I start because we have to determine if we can make reasonable accommodations. So, you know, one year I dealt with a dental practice where the dentist had a very small practice. Well, when you only have one assistant and one hygienist and one person at the front desk, sometimes you can't make these accommodations. And so we worked through the series of assessing whether that could be done. And the issue was the assistant did not want to be around the chemicals in the lab. Well, we eliminated what we could, but there's some things we simply could not eliminate. So those are difficult conversations, and I encourage dental practices if they're facing a situation like this to talk to their legal counsel. So thanks for sharing those points, Linda, on how to accommodate pregnant workers. And I like how you touched on water. You know, they need to drink fluids, but they cannot do it in the treatment room. Uh unfortunately, we we ding people on these audits where they're hiding their Stanley cups under their cabinets in the treatment room. So they'll need to place those items in the break area, not consuming or eating in the treatment room or sterilization areas. So now I'd like to interview our Diva Leslie, who also has a background as a clinical dental assistant and many, many years consulting. Leslie, what other federal laws might apply to pregnant workers?
SPEAKER_00Well, Olivia, pregnancy discrimination is against the law. So EEOC enforces three federal laws that protect job applicants and employees who are pregnant. And the first law you mentioned earlier, Title VII, which prohibits sex discrimination, including pregnancy discrimination. And pregnancy discrimination under Title VII can be based on current pregnancy, past pregnancy, potential pregnancy, medical conditions related to pregnancy, having or choosing not to have an abortion, and birth control. The second law is called the Pregnancy Workers' Fairness Act. And that requires covered employers to provide reasonable accommodation that we heard all about earlier, to a worker's known limitation related to pregnancy, childbirth, or related medical condition until the accommodation will cause, or pardon me, unless an accommodation, a reasonable accommodation will uh cause the employer undue hardship. The third law is called the Americans with Disabilities Act, which is uh discriminates discrimination against an applicant or employee based on disability, including a disability that is related to pregnancy, such as diabetes that sometimes develops during pregnancy. And while pregnancy itself is not a disability under ADA, there may a person may have one or more impairments related to the pregnancy that qualifies as a disability. Under ADA, now remember that's under Americans with Disabilities Act, and an employer has to provide that worker with a reasonable accommodation for the workers' pregnancy-related disability. And ADA also requires employers. Here's an important part to keep all medical records and information, including those that are pregnancy related, confidential, and in separate medical files.
SPEAKER_03Thanks for bringing that up. That's a good point, Leslie, to make sure we're protecting this information. So once again, I want to highlight that you know, if you're dealing with the situation as a dental team member where a pregnant worker is not showing up because they're sick and it's causing a problem with the schedule, be really careful about the very thought of dismissing someone. I had a dental office that did have EEOC violations when they dismissed a pregnant worker. So I do encourage you, those that are listening, that if you're contending with this problem, definitely talk to your legal counsel before making any decision like that. And then review the in the show notes. We will have all of these links available for you to look at ways that you can accommodate your workers reasonably that does not involve an undue hardship. Are there any other thoughts from the divas that you would like to share? Linda.
SPEAKER_01Hello, yeah. I would like to just remind our listeners, whether they're the employee or the employer, is to have your plan in place in advance. You know, look at this much like we talk about the safety plans and emergency of activations and even active shooters, but have a plan in place. Know that you have obligations as the employer and just be prepared because at some point you're going to have a pregnant worker throughout your career or many pregnant workers. I was in, as I was mentioning, I was in an office recently and they had two people in the same office location. They have multiple locations. Two people, one of the locations was pregnant. So it happens. And sometimes they joke and say, don't drink the water.
SPEAKER_03I'm laughing, Linda, because I've said before that when you're dealing with young staff, they're taking time off for pregnancy and older staff, they're having hip replacements. So we just have to roll with the punches and get through it the best we can and not violate any of these laws. Mary.
SPEAKER_02I have to stop laughing. Um I think there's two really important points to emphasize. And one is um one that Leslie just mentioned about making sure that the records are separated. And we find a lot of times in dental practices where medical records are put into the personnel file or things like exposure incident reports and other things are just saved in the OSHA manual and they need to be in a separate file, confidential medical records. And it can be an electronic file if it is password protected and only limited access to that file. And the other sort of overall issue is if you are practicing with the ultimate safety environment in mind that you know you try to eliminate chemical hazards like gluteraldehyde, and you're always following safety principles for radiography, then you shouldn't have to make a whole lot of changes or accommodations if someone is pregnant. Certainly anything that you can do to make it better. But if safety is your baseline, then you're so much further along in trying to protect anyone who's pregnant or who may want to become pregnant.
SPEAKER_03That's a good point, too. And I one of the divas alluded to this earlier, and I think Linda mentioned about having a plan. Uh, definitely your handbook should speak to uh using any of the accumulated pay time off when you do take time off uh to have your baby and plus the prenatal care and time to recover from childbirth. So whether it's unpaid or accumulated pay time off. And then some states like Tennessee, if you have 100 workers or more, uh you have four months off. Uh, so you want to spell it out about granting leave in your handbook. But to add to what Linda was saying, in preparing in advance, it may be helpful to seek out a temporary agency where you can locate uh hygienist or dental assistants that can fill in. Because it's very difficult to find clinical people to take on someone's pregnancy leave. So have a plan, as Linda mentioned, in place so that you're not scrambling the last minute. And hopefully, not all of the workers are pregnant at one time, as we have seen in some cases. So these are great things to keep in mind. Encourage you to look at those links in the show notes as the compliance divas. We bring clarity and simplicity to compliance by navigating regulatory compliance to keep you on course. Please visit our website at thecompliancedivas.com. And if you have any questions, you can email us at support at thecompliancedivas.com. As I mentioned, you can access the resources and also scroll through the episodes because there may be topics that we've discussed in the past that may be of interest to you or your safety meetings. So thanks again for tuning in and we'll see you next week.