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Being Sued By the Employee You Didn't Know You Had
The California Supreme Court recently held that a minor that was injured
in utero from conditions at the mother's work place is not limited to worker's
compensation as its remedy in pursuing liability against her mother's employer.
In this case, a cleaning crew at the store released fumes, and the pregnant
mother's exposure to the fumes allegedly caused her daughter to sustain birth
defects. Snyder v. Michael's Stores, Inc., 97 Daily Journal DAR 13501.
Ross' Review: The result of this case is not particularly troubling given
the facts. I struggle, however, with the impact that cases like this have
on the excellent employee who happens to be pregnant. Employers are being
boxed in on these pregnancy issues. On the one hand, if an employer limits
the responsibility or services of the pregnant employee, it risks disability
and gender discrimination claims. If the pregnant employee is given complete
deference, there may be unlimited liability to the unborn child for conditions
in the work place. All I can come away with is this: (1) there is room to
maneuver to secure everyone's best interests; but I would strongly suggest
that no action with regard to a pregnant employee (even at her request given
the potential for liability to the fetus) be taken without legal advice (2)
be sure the work place is safe for all persons, customers and employees, born
or unborn (if there are any health risks present of any kind--remember that
in the case cited, the court was addressing fumes emitted by the cleaning
crew--immediate precautions should be taken); and (3) the only way to address
issues which arise with the pregnant employee is to communicate regularly
with the employee, and to document the substance of those communications.
On this latter point, my view of the authorities in this area is that litigation
avoidance has become an elusive strategy. The unfortunate alternative is to
approach the problem on the assumption of litigation, and to act with appropriate
prudence.
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