Employer Guidance: Pregnant Dental Employees, Nitrous, and X-Rays

pregnant dental employee nitrous oxide and x-ray accommodations

Working in a dental office means possible exposure to potential hazards during work for all employees. Most risks are mitigated through properly functioning equipment and by following safety protocols.

One of the common issues related to potential exposure events that we hear about in CEDR’s Solution Center revolves around pregnant employees (or those hoping to become pregnant) taking x-rays or working around nitrous oxide. 

There are two ways this issue manifests:

  1. The employee expresses concern and asks for an accommodation. They’ve either done personal research and/or spoken with their physician. 
  2. The owner or manager calls in to say they are concerned and want to take proactive steps to protect a pregnant employee. 

Usually when we receive these questions, employers and employees alike have heard that x-rays and nitrous oxide can present the risk of potential reproductive harm. In either instance, everyone just wants to do the best thing possible for the employee while, at the same time, enabling them to keep performing the essential functions of their position. 

Business owners and managers are also rightfully concerned about their potential liability. And that is why, under circumstance number two above, employers need to be careful, no matter their good intentions, not to force accommodations on their employees. There is a better way to mitigate this issue. It’s called “the interactive process” and we’ll explain it briefly toward the end of this post.
 

FREE DOWNLOAD: ‘Notice of Potential Hazard’ Letter for Pregnant Employees

 

Basic safety practices are essential.

First, it’s important to note that the question of HOW MUCH risk pregnant employees face when working with nitrous oxide and x-rays must be left to the experts, the mother, and her physician.

While high levels of exposure to either substance could potentially present some level of risk to a pregnant employee’s reproductive health, some experts now say that putting basic safety practices in place can substantially minimize the risk your employee and her unborn child might face. 

In the case of x-rays, research shows that these safety practices include the use of aprons, thyroid shields, and/or barrier shielding. When delivering nitrous oxide to patients, it means ensuring that delivery protocols are followed, that ventilation is adequate, and using effective scavenger systems. Literature also says that the use of dosimeters, or monitoring badges, to detect potentially dangerous levels of either substance is also highly recommended, especially if requested by a pregnant employee or someone who intends to become pregnant.

For more general knowledge on the risk associated with pregnant employees working around nitrous oxide and x-rays, we’ve provided links to more detailed guidance from third-party experts at the end of this post

So, item number one on the list is to make sure you are doing all you can to minimize the risk of exposure to all of your employees. The first piece of the puzzle when it comes to limiting your liability as a manager or business owner when an employee becomes pregnant is to inform your employees of these potential workplace hazards.
 

First, make sure your employee handbook has a properly written ‘Notice of Potential Exposure’ policy.

All employees that work around potential workplace hazards, pregnant or not, must be made aware of what those hazards are. When it comes to nitrous oxide and x-rays, this means having a “Notice of Potential Exposure to Toxic Substances” policy in your employee handbook (this is a standard policy included in all CEDR employee handbooks).

If your handbook includes such a policy (many do not), you should have had each of your employees read your handbook from cover to cover and sign it to acknowledge their understanding of the policies inside. Including this as a step in the onboarding process will help you show that you’ve done your due diligence to make your employees aware of the potential risks of workplace exposure early in their employment. For a complete look at what a well-structured onboarding process looks like, download our free Onboarding Checklist here.

If you don’t have an employee handbook, if your employees haven’t signed your handbook, or your handbook does not contain a “Notice of Potential Exposure,” you will need to address this issue as soon as possible. Remember that policies cannot protect you or your employees if implemented and/or acknowledged after an HR issue has already come up. 

Though it is not a substitute for a compliant employee handbook policy acknowledged by your employee, we have also provided this free Notice of Potential Hazard Letter you can use as a stand-in while you work to update your handbook.

So, step number one is to make sure that you’re doing all you can to inform ALL of your employees of the potential risk of exposure, pregnant or not, and that starts with a properly worded “Notice of Potential Exposure to Toxic Substances” policy. Now we’ll discuss how to approach a situation in which an employee that you know is pregnant or is hoping to become pregnant works for you.
 
Click to download your free Notice of Potential Exposure Letter for Pregnant Employees
 

Don’t force an accommodation on your pregnant employee.

Sometimes well-intentioned employers will take it upon themselves to reassign a pregnant employee to prevent her from coming in contact with nitrous oxide or x-rays during her pregnancy. Occasionally this happens without the employee requesting such a change to their job duties. 

Though it might seem like a commonsense approach at first glance, forcing your employee to accept an accommodation before they request one can be seen as a violation of the employee’s civil rights. However well-intentioned, proactively changing a pregnant employee’s job duties based on your best intentions, and not on her informed request, is not something you want ever to do from an HR perspective.

Similarly, unless there are objective signs that an employee is struggling to perform their job, you should NEVER initiate a requirement that a pregnant employee go to their doctor to certify they are capable, safe, or informed in order to continue to work prior to that employee actually asking you for an accommodation. Forcing pregnant employees to “prove” they are capable of performing their work can also be seen as discrimination.

Instead, when one of your clinical employees lets you know they are pregnant or hope to become pregnant, your best course of action as an employer is to: 

  1. Make sure the employee is aware of the potential for exposure to toxic substances in their role (either by having them read and sign your employee handbook or by distributing a separate Notice of Potential Exposure to them)
  2. Wait for and/or provide the opportunity for them to request a reasonable accommodation from you and, finally,
  3. Engage in an interactive process with the employee to determine the best course of action for both your business and the employee.

If you aren’t sure that the employee is aware of their risk of exposure, it’s okay to remind them and ask them if they might need an accommodation from you. But, if your employee never expresses to you that they are in need of an accommodation, it is never a good idea to force one on them or to require them to go to a doctor to confirm they can keep working. 

If you’re a CEDR member and are dealing with an accommodation request, reach out to the Solution Center for help with this process. If you’re not a CEDR Member, click here to learn more about the Solution Center.

 

Work to identify a middle ground that supports your practice and your employee.

Once an employee asks you for an accommodation, the interactive process can include certification of her medically related request. At this time, done properly, it’s time to provide specific forms to your employee that will help their healthcare provider communicate key information regarding how the request(s) will impact the employee’s ability to perform some of the key functions of their job duties. 

This is a great opportunity to obtain further documentation. You do this as a part of the interactive process by asking the employee to take specific documents to their healthcare provider and return them completed. For CEDR Members, these forms are provided upon request as part of your membership.

Once a request for one or more specific accommodations has been made, your first course of action is to determine if there is some way you can fulfill the accommodation request(s). Perhaps providing some additional safety equipment and/or a monitoring badge would be enough to assuage their concerns. Or maybe another employee can step in to take care of x-rays or administer nitrous on a temporary basis.

If you can’t find a solution that works for both of you short of removing the employee from the situation altogether, then you may need to seek additional assistance from a qualified HR professional to ensure that you have documented your good faith efforts to accommodate the employee during the interactive process.
 
Click to download your free Notice of Potential Exposure Letter for Pregnant Employees
 

Conclusion

When an employee who works with nitrous oxide and/or x-rays becomes pregnant or expresses that they hope to become pregnant, your responsibility as an employer is to make sure they are aware of their risk of potential exposure. 

If your handbook was made by specialists in your industry like those in CEDR’s Solution Center, it will contain a Notice of Potential Exposure to Toxic Substances. If this is the case, then all you need to do is have all of your employees read and sign your employee handbook to ensure you’ve fulfilled your obligation to inform them of their potential risk. Otherwise, you will need to distribute a Notice of Potential Exposure to your employees, have them sign that notice, and keep that signed document in your records (we’ve provided a Notice of Potential Hazard Letter you can use on a temporary basis here).

Not all employee handbooks and policies are created with your industry in mind. A properly written “hazards in the workplace” policy can literally protect your practice. This is one of the many reasons why we at CEDR highly recommend that all employers have employees read and sign their employee handbook as part of the onboarding process and not put it off until it’s too late. 

It’s also why we recommend that employers make sure their handbook was drafted by a knowledgeable professional that understands how to customize that handbook for your industry. Most template and DIY handbooks fail to include the proper Notice of Potential Exposure policies that dental offices need, which can leave your practice vulnerable to potential litigation in these types of situations.

Once you’re sure the employee is aware of that potential risk, wait for them to bring a concern to you. Reassigning a pregnant employee or otherwise forcing an accommodation on them without them asking you to provide one is a form of pregnancy discrimination and is actually a violation of federal law. 

If you are concerned about their potential risk of exposure, say so, and ask the employee if they would like you to provide an accommodation that helps limit their risk of exposure. Regardless, you will want to avoid any temptation to preemptively “protect” your pregnant employee from exposure without them asking you to do so first.

If the employee requests an accommodation, engage them in an interactive process to identify the options that work best for that employee and your business. This can include providing additional safety equipment, temporary reassignment of duties, or even hiring a temporary employee.

You can read more about reasonable accommodations here. More information on the interactive process is available here.

And, as always, if you have any questions about what you’ve read in this post or how to apply it to your business, contact the CEDR Solution Center or crowdsource answers from your peers and CEDR’s HR experts in our private Facebook group, HR Base Camp.

 

Additional Resources

More information on the potential risks to pregnant employees associated with nitrous and x-rays can be found below. You may find the Mother to Baby “Working in a dental office” fact sheet goes against everything you thought you knew when it comes to nitrous oxide and x-rays. Nonetheless, always keep in mind that you must allow the employee to make her own decisions with her physician. Please consult the following resources:

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Apr 13, 2022

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.
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