Verona Meyer was about 35 weeks pregnant when she slipped while working at a Burger King and struck her lower abdomen on the corner of a table. The baby was born several hours later with severe injuries. The parents blame the accident.
Workers' comp laws usually bar family members from suing as the result of the employee's injury. But in this case, the Washington Supreme Court said the damage wasn't based on injury to the mother (the employee) but directly to the child. Therefore, the parents can sue Burger King on behalf of the child and themselves for the child's injury, and the company has no immunity. (Meyer v. Burger King Corp., No. 70015-0, Wash. Sup. Ct., 2001)
Other states have also ruled that their workers' comp laws don't bar claims involving a child who suffers prenatal injuries, as long as the child doesn't suffer simply because of the injury to the mother.
Advice: Employers are often faced with conflicting responsibilities, here providing a safe workplace for pregnant employees while at the same time not discriminating against them. The best way to maintain balance is by consistent application of policy and by keeping open communications between you and your employees. Talk to the employee and make sure she feels safe in her work environment.
Also, remember what federal law does and doesn't require of you: It only says pregnant employees must be treated the same as other employees on the basis of their ability or inability to work. For example, if you provide other work for employees who can't lift boxes because of a bad back, you must make similar arrangements for a pregnant worker. Also, sick leave and disability benefits have to be paid only on the same basis that applies to employees granted leave for a temporary disability.