The District of Columbia Court of Appeals, in a recent case, reviewed and applied currently accepted principles of pregnancy discrimination law in the context of healthcare worker faced with a workplace environmental hazard potentially threatening to her unborn child. These general principles of pregnancy discrimination law have come from recent cases handed down by the U.S. Supreme Court and other Federal courts involving pregnant workers in toxic industrial working environments.

   The case at hand involved a medical technologist whose job meant periodic exposure to levels of radiation potentially harmful to her fetus. The hospital’s policy required it to make pregnant workers exposed to hazards such as radiation aware of the potential risks and to educate them about appropriate protective measures. Among other things, the hospital’s policy required the hospital to issue a radiation badge and to monitor the badge regularly.

   The hospital’s radiation safety officer advised the medical technologist to limit her exposure to radiation. The technologist’s own personal physician recommended she be removed from all direct or indirect exposure to laboratory radiation until after she had delivered.

   Upon learning of the technologist’s own physician’s recommendation with respect to radiation exposure, the hospital placed her on immediate administrative leave to conduct an investigation and formulate a plan of action. The hospital then advised the employee of her options. She was told she alone had the responsibility to choose what path she would follow.

   Her choices were to remain on staff and re-assume her normal duties, to request a transfer within the hospital if a position in another department was available, to apply for a leave of absence, or to resign from her position and leave the hospital altogether.

   The technologist elected not to return to the lab. She asked for a transfer. The hospital had no other position for which she was qualified then available, and offered her the use of family or sick leave for the duration of her pregnancy. She refused to take family or sick leave, but was placed involuntarily on paid sick leave and then terminated when her accrued paid leave was exhausted.

   The technologist sued for wrongful termination. Her lawsuit alleged pregnancy discrimination. The court threw out the suit and exonerated the hospital from liability.

   The hospital fulfilled its duty under the occupational health and safety laws by monitoring the employee’s exposure to the hazard she faced and by advising her of the risk to her unborn fetus.

   However, according the court, the hospital was squarely on track not to try to dictate to the employee what course of action was best for her.

   The hospital was right to offer its employee the option of asking for a transfer to a position compatible with the medical restriction her physician had recommended. However, the court ruled the hospital was under no absolute legal obligation to give the the employee another position to accommodate her and her physician’s legitimate concerns over radiation exposure in the lab if an open position for which she was qualified was not available elsewhere in the hospital. Whether an alternate position is currently available and suitable rests with the institution’s sound business and personnel judgment, the court said.

   Paid family or sick leave must be available to pregnant employees on the same terms it is or is not available to employees who are not pregnant.