WA appeals court recognizes employer duty in preconception exposure case

A Washington appeals court recently held that an employee’s not-yet-conceived child may pursue a negligence claim for alleged birth defects tied to workplace chemical exposure, but the case remains at the pleading stage and is now the subject of a petition for Washington Supreme Court review. If reviewed and upheld by the supreme court, the holding has significant implications for employers across Washington state.

Decision

A recently published Washington Court of Appeals decision—Bauer v. Boeing Co.—addresses an unusual but potentially significant question: Can an employee’s not-yet-conceived child later bring a negligence claim against the employer for birth defects allegedly caused by preconception workplace chemical exposure?

The appeals court answered yes, at least at the pleading stage. It held that, at least when the injury is “foreseeable,” an employer may owe a duty of reasonable care to an employee’s not-yet-conceived child. It also held that Washington’s Industrial Insurance Act doesn’t bar the child’s claim if the child suffers a separate injury of his or her own. 

The case isn’t over: Boeing has petitioned the Washington Supreme Court to review and reverse the decision.

Significance of the Bauer decision

The decision is legally significant for at least three reasons.