> <
><
>Shawn Grady<
><
>Business Unit Manager<
><
>Reprocessing Products[55]<
><
>A copy of this letter was provided to Ms. Scott.<
><
>30. Three Miller-Dwan employees who worked in the reuse room or as a patient care technician related to Scott problems that they had had during their pregnancies while working with Renalin. These problems included pre-term labor, hypertension, severe headaches, and prolonged nausea.[56] Additionally, Dan Skorich told Ms. Scott about a nurse who worked in the Eveleth dialysis unit who had significant problems during her pregnancy.[57]<
><
>31. On October 23, 1996 Ms. Scott submitted a written request to the respondent for a temporary change in her work responsibilities. The written request read as follows:<
><
><
>October 23, 1996<
><
>To: Pam Elde, Director, Dialysis/ICU<
><
>From: Deb Scott, Dialysis Technician<
><
>Subject: Exposure to Renalin cold sterilant<
><
>I am writing to request a temporary change in my work responsibilities. This request is made after reviewing a letter written by Minntech Corporation stating that they recommend that pregnant women, including their own employees, not work with their product Renalin. Although Minntech heralds the quality and safety of Renalin, they advise on the side of prudence and caution when it comes to exposing pregnant employees.<
><
>Although there is no indication in the MSDS report listing any ill effects to humans from each of the three active ingredients, there are no studies of these active ingredients when combined, as they are in Renalin. My other concern is what the long term effects are on the children whose mothers have been exposed to Renalin. Again, there is no data to address this issue. I have also made inquiries into Minntech?s method of gathering statistical information regarding pregnancy complications, but as of this writing, I have not received any reply regarding this.<
><
>This century is full of incidents and tragedies of chemical exposure and ingestion of substances initially sworn to be safe, then later labeled as societal villains. But later is exactly that ? too late.<
><
>I am concerned that Renalin is not as benign as we would like to believe. Five female employees of child bearing age, myself included, have experienced difficulties throughout their pregnancies, the most common being premature contractions requiring lifting restrictions, and periodic rest at work in order to avoid the use of medications in conjunction with complete bed rest at home. Other symptoms have been hypertension, severe headaches, and nausea beyond what is typically considered the ?normal? period for morning sickness.<
><
>Three of the children born to the above mentioned women have had respiratory problems in infancy. Out of a total of eight pregnancies between five women, only two have been uncomplicated, and one of those pregnancies occurred before the use of Renalin. This particular employee?s two subsequent pregnancies were very difficult, requiring
ief periods of hospitalization.<
><
>I do not believe that my request for a temporary change in work responsibilities is unreasonable or unfounded, given the warning by the manufacturer of Renalin as well as my personal experience and that of my co-workers. As a mother, my primary responsibility is to my children. I am their nurturer, their first teacher, and their protector; it is my responsibility to ensure that they grow up happy and healthy. Since I do not feel that my concerns can be adequately addressed, I feel that it is in this baby?s best interest to heed Minntech?s caution and not continue to expose him and myself to Renalin. There is nothing in this world that is worth risking my children?s health, and since there is insufficient long term data, when it comes to a human being, I am choosing to follow Minntech?s recommendation.<
><
>Sincerely,<
><
>(signed)<
><
>Deborah Scott[58]<
><
> <
><
>32. In October of 1996, Ms. Scott met with a nurse practitioner who worked with her obstetrician. Ms. Scott showed the nurse practitioner the letters from Minntech and the nurse practitioner told Scott that she thought it was advisable that she not continue to expose herself to Renalin.[59]<
><
>33. On November 7, 1996 Ms. Scott met with Ms. Elde, Ms. Johnson and Jerry Zanko, Miller-Dwan?s Human Resource Manager. They advised Ms. Scott that Miller-Dwan?s investigation had revealed no pregnancy risk by exposure to Renalin. Ms. Scott was provided with the following letter at the meeting:<
><
>November 7, 1966<
><
>Dear Deb,<
><
>The purpose of this letter is to respond to the concerns you detailed in your October 23, 1996 memo to me regarding Renalin exposure during pregnancy.<
><
>As you are aware, Miller-Dwan has never considered exposure to Renalin, within MSDS and OSHA guidelines, a safety concern for our pregnant employees. Our recent knowledge of the existence of Minntech?s letter dated April 9, 1993 has prompted further investigation.<
><
>In addition to Minntech?s April 9, 1993 letter and their response to my inquiry dated October 16, 1996, we have reviewed:<
><
>? Dr. Jed Downs, Occupational Medicine, opinion (attachment)<
><
>? Dr. Richard Cohan, Occupational Medicine, opinion<
><
>? Renalin MSDS information<
><
>? OSHA Standards<
><
>? Dialysis community standards.<
><
>A complete review of this data does not indicate that working with Renalin during pregnancy poses a risk to either a pregnant employee or her unborn child. Therefore, you are directed to resume your usual dialysis technician duties, with the exception of those precluded by your current lifting restriction.<
><
>I know the time since we became aware of Minntech?s letter of April 9, 1993 has been very difficult for you and am sorry for the personal hardship you have endured. If you are unwilling to resume your full scope of duties at this time, a voluntary LOA is available to you. This option is being made available to you because of the emotional distress assuming the full scope of your duties may cause you.<
><
>As in the past, Miller-Dwan continues to give your safety and the safety of all Miller-Dwan employees the highest priority. We will continue to seek clarification from Minntech regarding their recommendation on this important issue.<
><
>Sincerely,<
><
>(signed)<
><
> <
><
>Pam Elde<
><
>Director Critical Care Units[6 <
><
>Attached to the letter was a memo from Dr. Jed Downs which stated that neither hydrogen peroxide or peracetic acid would build up in concentrations able to cross the placental barrier and, therefore, would not harm the developing fetus.[61] The Downs memorandum did not address what could happen if a pregnant woman is exposed to Renalin at levels exceeding OSHA exposure limits and did not address the synergistic effect of the ingredients in Renalin.[62]<
><
>34. A telephone survey of other dialysis programs by Ms. Elde found that seven other hospitals in Minnesota took no special precautions for pregnant employees working with Renalin. One, Abbott Northwestern, stated that pregnant employees were not assigned to dializer reuse duties, but only upon employee request.[63]<
><
>35. On November 8, 1996 Ms. Scott had a scheduled appointment with her obstetrician, Dr. Stephan Guttormsson. She told him her concerns about Renalin and he reviewed the information including the Minntech letters and Dr. Cohan?s report.[64] Dr. Guttormsson advised Ms. Scott that she should not be exposed to Renalin.[65] It was Dr. Guttormsson?s opinion that it would be hard to ignore the bold faced typed instructions of the manufacturer that pregnant women should not be exposed to this compound. He noted that most human studies committees won?t allow studies on pregnant women so there is an absence of data about reproductive hazards. Dr. Guttormsson suggests that if there is a concern about a substance it should be avoided during pregnancy.[66]<
><
>36. Mr. Norman sampled the air in the reuse room again on November 8 and 12, 1996, to determine the concentration of hydrogen peroxide and acetic acid. He found that the airborne concentrations were within OSHA limits and that while there was a noticeable odor in the reuse room while testing, no irritant effects were noted. He observed that the single greatest source of hydrogen peroxide was from the dializers while they were drying after sterilization. He recommended either extending the Renatron hood or installing a separate hood for the drying process.[67] His testing did not take place during the Saturday ?end to end? disinfect process or while the 20% Renalin solution jugs were being changed or dumped.[68]<
><
>37. On November 25, 1996 Mr. Zanko telephoned Ms. Scott to ask whether she would be resuming
her reuse technician duties. Ms. Scott replied with a written memo in which she stated that she was unwilling to work with Renalin due to the precautionary statement issued by Minntech Corporation and advised the respondent that this decision was supported by her obstetrician. She stated that she was willing to continue her employment with Miller-Dwan but that the only alternative appeared to be to resign.[69] <
><
>38. In a written response Mr. Zanko advised Ms. Scott that Miller-Dwan would not accept her resignation but instead would place her on a special unpaid leave of absence as of November 8, 1996.[7 He advised Ms. Scott that her position would be held open for up to 12 weeks after the birth of her child.<
><
>39. Ms. Scott?s initial reaction to being placed on an involuntary unpaid leave of absence was disbelief. She felt like she was forced to chose between her livelihood and her health.[71] The loss of income caused her to be unable to pay some of her bills and as a result she was pursued by her creditors and had to stop answering her telephone.[72]The financial problems caused stress in Ms. Scott?s relationship with her partner and her son.[73] Because of insufficient financial resources she was unable to continue her work as a photographer and there was little money available for a Christmas holiday at the end of 1997 for her family.[74]<
><
>40. Had Ms. Scott not been placed upon involuntary unpaid leave of absence by Miller-Dwan she would have earned back wages, sick leave, vacation leave, health insurance benefits and pension benefits in the total amount of $3,150.40.[75]<
><
>Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:<
><
>CONCLUSIONS OF LAW<
><
>1. The Administrative Law Judge has jurisdiction in this matter pursuant to Minn. Stat. ?? 14.15 and 182.669.<
><
>2. The notice of hearing in this matter was proper.<
><
>3. The Department has fulfilled all relevant substantive and procedural requirements of law or rule.<
><
>4. Minn. Stat. ? 182.654, subd 9 states as follows:<
><
>No employee shall be discharged or in any way discriminated against because such employee has filed any complaint or instituted or caused to be instituted any proceeding or inspection under or related to this chapter or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of the employee or others of any right afforded by this chapter. Discriminatory acts are subject to the sanctions contained in section 182.669.<
><
>5. Minn. Stat. ? 182.654, subd. 11 provides in part:<
><
>An employee acting in good faith has the right to refuse to work under conditions which the employee reasonably believes present an imminent danger of death or serious physical harm to the employee.<
><
>A reasonable belief of imminent danger of death or serious physical harm includes but is not limited to a reasonable belief of the employee that the employee has been assigned to work in an unsafe or unhealthful manner with a hazardous substance, harmful physical agent or infectious agent.<
><
>An employer may not discriminate against an employee for a good faith refusal to perform assigned tasks if the employee has requested that the employer correct the hazardous conditions but the conditions remain uncorrected.<
><
>An employee who has refused in good faith to perform assigned tasks and who has not been reassigned to other tasks by the employer shall, in addition to retaining a right to continued employment, receive pay for the tasks which would have been performed if (1) the employee requests the commissioner to inspect and determine the nature of the hazardous condition, and (2) the commissioner determines that the employee, by performing the assigned tasks, would have been placed in imminent danger of death or serious physical harm.<
