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Liability for Accidents Involving Pregnant Women

Pregnant women who are injured in accidents face unique risks. Injuries to the fetus from seatbelts and steering wheels are responsible for four out of five fetal deaths that are trauma-related. Even injuries that don’t directly affect the fetus can complicate pregnancy. If an accident leads to litigation, pregnancy-related injuries can have important consequences for the liable party.

Pregnancy and damages

In a personal injury case a plaintiff can seek compensation for all of the costs that are associated with the injury caused by the defendant. Pregnancy-related injuries are no different. The defendant must compensate the plaintiff for pregnancy-related complications to the extent the defendant is responsible for causing them. Among these damages can be the cost of recovering from emotional trauma.

Nevada law also permits plaintiffs to recover for injuries to an unborn fetus. In White v. Yup, 85 Nev. 527 (1969), the Nevada Supreme Court adopted the rule that a plaintiff may sue for damages on behalf of an unborn fetus, including for wrongful death. As a threshold matter the fetus must have been viable at the time of the accident. If the child is stillborn following the accident and the plaintiff can establish that the accident caused the still birth, wrongful death may be the appropriate cause of action. In such cases the plaintiff can recover medical and funeral costs. In some cases punitive damages may also be awarded, but under Nevada’s wrongful death statute a plaintiff may not recover damages for pain and suffering. NRS 41.085(5)(b).

Pregnant women are at higher risk of accidents

The special dangers of injury during pregnancy make it especially important for pregnant women to take precautions. One study found that women were 42% more likely to get into a car crash during their second trimester than they were during the three years prior to getting pregnant. Paying attention to seatbelt positioning, seat adjustments, and other precautions can reduce some, but not all, of the risk of injury.

Just because a pregnant woman faces higher risks doesn’t mean that she bears responsibility in the event that she’s injured by another person’s negligence. Although in accident cases an injured person’s comparative negligence can be a factor in determining a defendant’s liability, the mere fact that the plaintiff was pregnant at the time of the accident is not going to be enough. On the other hand, if the plaintiff was suffering from particularly severe morning sickness there may be an argument that she should not have attempted to drive.

GGRM is a Las Vegas personal injury law firm

For over 45 years the attorneys at Greenman Goldberg Raby Martinez have represented injured clients in the Las Vegas area. If you have been injured in an accident call us today for a free attorney consultation at 702-388-4476 or request a call through our website.

Are Mandatory Flu Shots Legal in Nevada?

Are Mandatory Flu Shots Legal in Nevada?

Some employers, especially in the health care industry, have started requiring their employees to get annual flu shots. Even though the flu vaccine has a lot of benefits both for the patient and the population at large, some people can experience serious side effects. These range from fever and nausea to allergic reactions and, in rare cases, serious conditions like Guillain-Barré syndrome. An employer mandate can feel unfair for employees who are concerned about the risks of vaccines or object to them on religious grounds. But if an employer terminates an employee for refusing to comply with a mandatory vaccine policy, does the employee have legal recourse?

At-will employment gives employers leeway

Nevada is an at-will employment state, which means that an employer ordinarily can terminate an employee with or without cause. There are exceptions to this general rule for employees who work under a contract, such as collective bargaining agreements, where the terms of the contract will override the default, at-will rule. But absent an arrangement that spells out when and how an employee can be fired, an employer is free to terminate an employee at any time.

Failure to comply with a condition of employment, such as a requirement that all employees get the flu vaccine, may give an employer cause for firing an employee. For the employee, being fired for cause could have consequences beyond just losing the job, such as affecting eligibility for retirement benefits. As a consequence, an employee who objects to a mandatory vaccine may be placed in a difficult position.

Responses to a mandatory flu vaccine

Employees who object to their employers’ mandatory vaccine policies have started taking the issue to the courts, either directly or with the help of the U.S. Equal Employment Opportunity Commission (EEOC). These cases have raised several potentially strong legal arguments in favor of employee choice:

  • Disability. An employee who can show that a vaccine may have negative side effects related to an existing disability may have a good argument that the employer must grant a reasonable accommodation under the Americans with Disabilities Act (ADA).
  • Pregnancy. A pregnant employee may be able to refuse a vaccine on grounds that other employees have been granted exceptions for other medical reasons. The federal Pregnancy Discrimination Act prohibits unequal treatment of pregnant employees on the basis of their pregnancy. Pregnant employees may also qualify for disabilities under the ADA in some circumstances, such as if they are suffering from gestational diabetes.
  • Religious convictions. An employee with sincerely-held religious beliefs that prohibit the use of vaccines may be entitled to reasonable accommodations under Title VII of the Civil Rights Act of 1964, so long as the accommodation does not present an undue hardship to the employer. Note that Title VII does not apply to purely secular objections, such as those based on particular scientific studies or non-religious personal convictions. See Fallon v. Mercy Catholic Med. Ctr., 977 F.3d 487 (3rd Cir. 2017).
  • Privacy. Under the federal Health Insurance Portability and Accountability Act (HIPAA) most types of health care provider are required to keep confidential the health records of their patients. Employers are only entitled to such information in limited circumstances. In many situations, the administration of a flu vaccine in the workplace, such as by a third-party contractor, will fall outside HIPAA, but under the right circumstances a health care provider advising an employer that an employee refused a vaccine could violate the employee’s HIPAA rights.

GGRM serves the Las Vegas community

For over 45 years the attorneys at Greenman Goldberg Raby Martinez have helped clients in the Las Vegas area protect their legal rights and recover compensation for injuries they have suffered. If you have lost your job for refusing to comply with a mandatory vaccination policy and would like to understand your legal options, call us today for a free attorney consultation at 702-388-4476, or request a call through our website.

The Nevada Pregnant Workers’ Fairness Act Expands Protections for Workers

The Nevada Pregnant Workers’ Fairness Act Expands Protections for Workers

On October 1, 2017,  a new law went into effect to strengthen protections for pregnant workers in Nevada. The Nevada Pregnant Workers’ Fairness Act (NPWFA), NRS 613.335, is designed to prevent discrimination in the workplace on the basis of pregnancy, childbirth, or a related medical condition. Employers with 15 or more employees need to understand their rights and obligations under the new law.

The NPWFA prohibits discriminatory employment actions based on pregnancy or pregnancy-related conditions

The NPWFA prohibits employment discrimination against pregnant employees in a number of ways, and requires employers to provide reasonable accommodations for pregnant employees who require them. Specifically, the NPWFA makes it unlawful for covered employers to:

  • Deny reasonable accommodations requested by an employee or applicant for conditions related to pregnancy, childbirth, or a related medical condition, unless the accommodation presents an undue hardship upon the employer or its business.
  • Base adverse employment actions on an employee’s request for or use of a reasonable accommodation.
  • Deny employment to an otherwise qualified female employee or applicant on the basis of needing a reasonable accommodation.
  • Require a female employee or applicant to accept an accommodation that she didn’t request or has turned down, or to take a leave of absence even though an accommodation is available.

The NPWFA’s protection for new and expecting mothers extends well beyond pregnancy itself. Its definition of covered conditions includes a “physical or mental condition intrinsic to pregnancy or childbirth.” This explicitly includes conditions related to lactation, including the need to express milk, and post-partum depression, among other things. The NPWFA also specifically covers recovery following the loss of a pregnancy.

The NPWFA provides some guidance regarding what reasonable accommodations might look like. For example, modified equipment, revised break schedules, or providing a clean space (other than a bathroom) for expressing milk. If the employee’s job involves manual labor, the employer might temporarily give her light duty or a transfer to a less strenuous position.

Protected employer actions

Although the NPWFA offers pregnant employees broad protections against discriminatory behavior by employers, it gives employers certain leeway. For one, employers may still make employment decisions based on a bona fide occupational qualification. Employers are also allowed to require an employee to provide a written medical certification from the employee’s doctor describing the employee’s need for an accommodation in connection with pregnancy, childbirth, or related conditions. The employer can also require the report to include the physician’s recommendations for specific accommodations that would meet the employee’s medical needs.

Notice requirement

Employers who are subject to the NPWFA must post in a conspicuous place a notice about employees’ rights under the law, and must provide a copy of the notice to all new employees and, within 10 days, any current employee who notifies management that she is pregnant. The Nevada Equal Rights Commission provides a form of notice on its website. Note that the NPWFA’s notice requirements went into effect on June 2, 2017.

At GGRM we are committed to helping our business clients stay in compliance with laws like the NPWFA, and to ensuring that the rights of our individual clients are protected. If you have questions about how the NPWFA might affect your individual rights or your obligations as an employer, our attorneys are available to help. Give us a call at 702-388-4476, or visit our website, to schedule a free consultation.