Recent Nebraska case law may force pregnant workers to chose between filing a discrimination or workers’ compensation case for pregnancy-related injuries.

Paid maternity leave is nearly a luxury in the United States – particularly for lower-wage hourly workers in the service industry. But pregnant workers in Nebraska have some protections in the way of anti-discrimination laws and workers’ compensation laws.

But unfortunately, pregnant workers in Nebraska may have to pick between discrimination and workers’ compensation laws if work causes a miscarriage or complicates a pregnancy.

Filing a pregnancy discrimination claim if the discrimination causes a physical injury? Maybe not.

It would stand to reason that if an employer fails to accommodate a pregnant worker by giving them help with manual labor and that manual labor leads to a miscarriage or other complications, you would have both a pregnancy discrimination case and a workers’ compensation case.

The Nebraska Supreme Court might beg to differ.

In Dutcher v. Nebraska Department of Correctional Services, the Nebraska Supreme Court held that so-called exclusive remedy provision of the Nebraska Workers’ Compensation Case prevented an employee from suing their employer under the Nebraska Fair Employment Practices Act for being fired due to a disability that was caused by her work injury.

Dutcher is a bad employee’s case and it will get a full analysis soon. But one implication of Dutcher would be that an employer could argue that an employee is impermissibly trying to “double-dip” if they alleged pregnancy discrimination for a failure to accommodate that also caused a work injury where they collected workers’ compensation benefits.

Arguably, pregnancy is distinguishable in that pregnancy would not be a condition that be covered by workers’ compensation in Nebraska. Pregnancy isn’t caused by a work injury. Would an employer be forced to cover a pregnancy under workers’ compensation for a pregnancy from consensual sex on the job? Would an employee who was raped on the job be forced into the exclusive remedy of workers’ compensation if they were impregnated? The answer should be no and no. But I think Dutcher could quite possibly limit the protections of pregnant workers who get injured on the job when an employer fails to accommodate their pregnancy.

Pregnancy discrimination in Nebraska

Nebraska changed the Nebraska Fair Employment Practices Act to ensure employers of 15 or more to provided reasonable accommodations for pregnancy and pregnancy-related medical conditions. I would argue Nebraska law could provide more of a duty for covered employers to accommodate an employee with a disability. Nebraska law spells out specific reasonable accommodations for pregnant workers such as breaks, help with manual labor and temporary light duty jobs that aren’t generally required for disabled employees.

Damages under the Nebraska Fair Employment Practices Act can include back pay, front pay, attorney fees and compensatory damages. In plain language compensatory damages means pay for pain and suffering and emotional distress. Those pain and suffering damages aren’t available under workers’ compensation.

But what about employee’s working for employers with fewer than 15 employees? If they are employed in Omaha or Lincoln they can file a charge with a municipal human rights agency for failure to accommodate a pregnancy.  

If the failure to accommodate pregnancy causes a miscarriage or otherwise forces a pregnant worker to seek medical treatment, they can also file a workers’ compensation claim in Nebraska.

Workers’ compensation for pregnancy in Nebraska

I think miscarriages or other complications to pregnancy would be covered by workers’ compensation in Nebraska. I think this for two reasons: 1) Nebraska workers compensation covers work injuries from overuse or repetitive use and 2) Nebraska has contributing factor causation which means work can combine with other factors to cause an injury and still be covered by workers’ compensation.

All employees are covered by workers’ compensation in Nebraska from the first day of their employment. Workers’ compensation also covers all medical bills from a work injury. So even if an employee isn’t covered by the Nebraska Fair Employment Practices Act,  isn’t covered by  the Family Medical Leave Act and/or doesn’t have health insurance, workers’ compensation should cover any medical expenses related to a physical injury from an employer unreasonably forcing a pregnant worker to work.

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