If an employee is injured during the course of employment, then that employee, as least in most circumstances, will receive the scheduled workers' compensation benefits. So what happens if the employee is pregnant at the time of injury and the fetus is injured? Does the fetus have a right after birth to sue the employer, or is workers' compensation the exclusive remedy?

Some courts have addressed this issue and, of course, the answer varies with the jurisdiction. One example is Snyder v. Michael's Stores, Inc., 945 P.2d 781 (1997), a California Supreme Court decision. In this case, the parents of a minor sued the mother's employer on behalf of the child, seeking damages for physical injuries resulting from the employer's negligence. The minor's lawsuit claimed she was injured in utero when the mother was exposed to and breathed in carbon monoxide in amounts that were toxic to both mother and fetus. The trial court barred the lawsuit on the grounds that WC was the exclusive remedy.

On appeal, the California Supreme Court noted that the only question was whether the fetal injuries occurring at the mother's workplace were remedied solely, if at all, through the workers' compensation system. The court reviewed the workers' compensation law and said that a child's claim deemed collateral to or derivative from an employee's injuries are under the workers' compensation system. However, the court went on, this derivative injury rule applies only if the child were seeking damages for the mother's work-related injuries, or if the claim necessarily depended on the mother's injuries.