If a pregnant employee is injured at work and her baby is born with health defects or problems, you could get blamed. Unfortunately, it’s not always easy to take preventive measures to protect a fetus from harm because some approaches that might seem sensible are actually illegal. We’ll look at a new case involving a fetal injury, and give some suggestions for protecting your pregnant employees from harm and your organization from a lawsuit.
Contaminant In The Workplace
Carol Skommesa was a meat cutter at a Southern California Lucky Stores supermarket while pregnant with her daughter Veronica. Part of her job was inspecting raw meat for contaminants.
Skommesa contended that raw meat can contain a parasite that poses no threat to adults, yet may cause a fetus to develop toxoplasmosis, which can have a devastating effect on the brain and other organs.
Although Skommesa never became ill, her daughter Veronica was born with severe developmental and neurological defects allegedly caused by contact with the parasite at Lucky.
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Employer Sued For Birth Defects
Veronica sued Lucky for her injuries charging that although the grocer knew that exposure to raw meat posed a serious risk to a fetus, it made no attempt to warn her pregnant mother.
Lucky asked the court to dismiss Veronica’s case claiming that she, like her mother, could only receive workers’ compensation benefits.
Child Not Limited By Workers’ Comp
The California Court of Appeal ruled that Veronica’s suit was not restricted by workers’ comp laws because her injuries were not a result of injuries to her mother. Basing its decision on an earlier California Supreme Court ruling that a child can sue its mother’s employer for in utero injuries caused by conditions in the mother’s workplace, the court said Veronica’s case could proceed.
Ban On Activities Of Pregnant Workers Not A Solution
Faced with this liability threat, you may be tempted to forbid 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 can also suffer reproductive injuries.
4 Risk Management Strategies
It’s impossible to fully eliminate fetal injury claims, but you can reduce the risks in a number of ways:
- Create a safe environment. Obviously, the best protection for your employees is to make sure the work environment and areas open to customers or the public are as safe as possible. Conduct periodic safety checks and correct hazards immediately.
- Make a full disclosure. Many state and federal laws already require you to notify employees and customers of the dangers of hazardous materials. In addition, if you know that a pregnant worker or a female employee of childbearing age could be exposed to workplace 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 questions she may have with her physician. This permits a doctor—not you—to determine whether she can work without danger.
- Obtain a signed acknowledgment. If a pregnant employee insists on working in a situation you believe poses a threat, have her sign an acknowledgment of the potential risks to her unborn child. It should state that she was offered the opportunity to discuss with her physician the chance of injury to herself or the fetus, but she is choosing to continue working. If she refuses to sign, make a note of it in her file.
- Accommodate pregnant employees. If a pregnant employee is worried about her health, consider modifying her duties, altering her work station or transferring her to a different department or location. (See CEA October 1995 for more on accommodating pregnant employees.)