Employer Liability: New Ruling Holds Employers Responsible For Injuries To Unborn Children; 5 Ways To Protect Yourself And Your Workers

If a pregnant employee is injured at work and her baby is born with problems, the child can later sue you for damages. That’s the latest word from the California Supreme Court. This new decision could open the door to expensive lawsuits involving fetal injury claims-which won’t be covered by workers’ compensation laws that limit the amount you could have to pay in damages. And it may come as a surprise that some steps you might want to take to prevent such problems are actually illegal. We’ll look at the new case and offer several strategies for protecting yourself and your pregnant employees.

Buffer Causes Carbon Monoxide Poisoning

Naomi Snyder worked for Michael’s Stores in Stanislaus County. During her pregnancy, a janitorial contractor used a propane-powered floor buffer in the store without adequate ventilation.

Several customers and employees, including Snyder, were exposed to toxic levels of carbon monoxide and taken to the hospital.

Because of the exposure, Snyder’s unborn daughter, Mikayla, suffered permanent brain damage and was born with cerebral palsy. After her birth, Mikayla, through her parents, sued Michael’s for damages resulting from the store’s alleged negligence in supervising the janitorial contractor.

400+ pages of state-specific, easy-read reference materials at your fingertips—fully updated! Check out the Guide to Employment Law for California Employers and get up to speed on everything you need to know.

Unborn Child Not Limited By Workers’ Comp

Michael’s asked the court to dismiss Mikayla’s case, claiming she-like her mother-could only receive workers’ compensation benefits because the injuries occurred at work. But the court ruled that although Mikayla’s mother was restricted to workers’ comp for her injuries, Mikayla herself was not considered an employee and, therefore, could sue Michael’s in court for unlimited damages. Of course, in order to collect, she will now have to prove that Michael’s was, in fact, negligent.

Ban On Pregnant Workers: Don’t Do It

Although this case involved an outside contractor, it also applies to workplaces in which employees deal with toxic chemicals, dangerous machinery, or other risks. And, as the case shows, the threat is even broader because fetal injuries can occur anywhere-even in a retail store which appears safe from the danger of contamination by environmental toxins.

Faced with this new liability threat, you may be tempted to block all pregnant women-or even all women of childbearing age-from performing potentially hazardous jobs.

But courts have found such blanket prohibitions may constitute illegal sex discrimination because male employees (who could also suffer reproductive injuries) are not subject to the same work restrictions.

5 Risk Management Strategies

It’s impossible to fully eliminate the risk of fetal injury claims, but here are some steps you can take:


  1. Create a safe environment. Obviously, the best protection for you and your employees is to make sure the work environment and any areas open to customers or the public are as safe as possible. Conduct periodic safety checks, and correct hazards immediately.


  2. Make a full disclosure. Many state and federal laws-including Proposition 65 and Cal/OSHA-already require disclosure to employees and customers of the dangers of hazardous materials. In addition, if you know that a female employee of childbearing age or a pregnant worker will be exposed to environmental toxins or physical dangers, make as full a disclosure as possible. But rather than telling a pregnant worker where she can or cannot work safely, encourage her to raise any questions she may have with a physician. This permits a doctor-not you-to determine whether she can work without danger in any given job.


  3. Obtain a signed acknowledgment. If a pregnant employee insists on working in a situation you believe poses a real threat, have her sign an acknowledgment of the potential risks to her unborn child. It should state that she has been offered the opportunity to discuss with her physician the chance of injury to herself or the fetus, but she has elected to continue working. If she refuses to sign, make a note of it in her personnel file.


  4. Accommodate pregnant employees. If a pregnant employee is worried about her health, try to accommodate her concerns. Consider modifying the employee’s duties, altering her work station or transferring her to a different department or location. 


  5. Check out contractors and your insurance. If you hire outside contractors, be sure they are licensed and carry liability coverage. Check their references to verify their experience. You also may want to ask the contractor to include you as an “additional insured” on their liability insurance policy. Finally, review your own business liability insurance policies to see that your coverage is up to date.