United States: Addressing Zika's Continued Threat To The Workplace

Last Updated: September 26 2016
Article by Natalie Young

The growing prevalence of the Zika virus in the United States has already presented a number of hurdles for employers striving to create a safe and healthy workplace environment for their employees. These concerns are more immediate than ever. The recent and continuing outbreak in Florida and the emergence of state-to-state transmission within the U.S. reinforce the need for employers to stay informed of best practices for minimizing workplace health risks without overstepping critical legal boundaries between employer and employee.

What is the Zika Virus?

While scientists are still learning more about the Zika virus (and we cannot stress this enough), it is primarily known by the public as a mosquito-borne illness that a pregnant woman may pass to her unborn baby, which can cause microcephaly and other severe fetal brain defects and has been linked to problems in infants including eye defects, hearing loss, and impaired growth.

For the large majority of others, however, one in five infected people may experience a fever, rash, joint pain, and conjunctivitis. (There is some research suggesting a strong correlation between the Zika virus and reported instances of Guillain-Barré Syndrome (GBS), a nerve-damaging autoimmune condition that can lead to temporary or, even in very rare cases, permanent paralysis, but this represents a very small fraction of infected people and the condition is treatable in most instances.)

Besides through mosquitos, a person may become infected with the Zika virus through sexual contact or blood transfusion, but scientists have not found any evidence that an infection may occur through normal person-to-person contact such as shaking hands.

To date, the Zika Pregnancy Registry of the Center for Disease Control and Prevention (CDC) reports eighteen liveborn infants in the US with birth defects in cases with laboratory evidence of possible Zika virus infection. Further, the number of reported incidents in the U.S. continues to rise each day with the CDC reporting as of this writing a over 3,100 travel-related infections in a multitude of states and 43 locally acquired infections in Florida. In addition, infected cases have been reported in Mexico, the Caribbean, Central America, South America, the Pacific Islands, and Cape Verde.

U.S. health experts do not expect an epidemic similar to that of Brazil – a conclusion that is due, in part, to the fact that Americans live in less dense populations and use window screens and air-conditioning. Notably, the species of mosquitoes that carry the Zika virus currently live in localized areas in the Southern U.S. Nevertheless, precautions should be taken to avoid mosquito bites in high-risk areas, particularly for employees working outdoors in warm climate regions.

Be Careful of Supposed Common-Sense Responses that May Violate the Law

Now that there are reported incidents of local Zika-infected mosquitoes and state-to-state transmission of the Zika virus within the U.S., it is important for concerned employers to ensure that any employment-related actions are compliant with the Americans with Disabilities Act (ADA), the Occupational Health and Safety Act (OSHA), Title VII of the Civil Rights Act of 1964 (Title VII) and other local, state and federal employment laws. Employers must consider these laws when tailoring their response strategies in order to reduce their exposure to employee claims and their employees' exposure to infections.

  • Employee Medical Examinations. The ADA prohibits mandatory medical examinations unless the employer has a reasonable belief that an employee's medical condition poses a "direct threat" to the workplace, i.e. there is a business necessity to do so. Because the Zika virus does not spread through typical employee-to-employee interactions, including through casual contact (i.e. a handshake, use of a water cooler), neither the CDC nor state or local public health authorities have determined that the virus is a direct threat. Employers therefore should think twice before requiring medical examinations for employees exhibiting symptoms or returning from affected areas.
  • Employee Quarantines. Public health agencies have not taken steps to isolate or quarantine individuals who exhibit symptoms, live in affected areas in the United States (such as Florida), or travel to and from affected areas. As a result, any attempt by an employer to do so could be met with criticism and impose potential liability under a myriad of state and federal laws aimed at preserving medical privacy and prohibiting discrimination, including based on disability, race, and national origin. Therefore, in line with medical examinations, employers should be careful before forcing an employee to stay home rather than report back to work.
  • Pregnant Employees. Gender discrimination is a violation of Title VII and many other state and local discrimination laws, and a claim could arise if employers ask employees whether they or their partner are pregnant or plan to become pregnant, enforce a travel prohibition against pregnant women or women of child-bearing age, or against men with pregnant partners, or otherwise subject employees to other restrictions to "protect" against infection. In other words, employers should not make health-based decisions for their employees, including their pregnant employees, even if they believe it is in the best interest of the employee. Further, some discrimination laws require employers to reasonably accommodate pregnant employees and therefore, if a pregnant employee requests an accommodation, i.e. against traveling to an affected area to perform services on behalf of the employer, then the employer must engage with the employee in an interactive process to determine what accommodations, if any, are reasonable. The recent incidents of the Zika virus in the U.S. may also prompt pregnant employees to request to work remotely due to a fear of exposure for their unborn children. Employers should conduct the same reasonable accommodation analysis as described above in order to assess the request, the risk in the workplace, and the effect of the accommodation on the workplace.
  • Employee Safety. OSHA permits employees to refuse to work when there is an objectively "reasonable belief that there is imminent death or serious injury." Because the Zika virus can be prevented by taking appropriate precautions, an employee's presence in an affected region is not likely to cause imminent death or serious injury, absent possibly where the employee is pregnant. For this reason, OSHA's regulation may not apply to employees who refuse to perform their job duties in an effort to protect themselves against the Zika virus. That said, given the amount of public attention around the Zika virus, employers should consult with counsel before making an adverse employment decision based on an employee's refusal to perform his or her job.

So What Should Employers Do?

So if employers generally cannot require employees to undergo medical examinations, cannot quarantine employees who have recently traveled to affected regions, and cannot enforce targeted travel prohibitions, what should they do?

  • Communication/Education. Employers should educate employees about the risks of travel to and from affected regions, the possible symptoms of the Zika virus (fever, rash, joint pain, and red eyes), the modes of transmission (mosquitoes, blood transfusions, and sexual contact), and proper precautions to avoid infection (outlined here by the CDC). Appropriate communication should effectively undercut any campaign of misinformation that has navigated its way through the workplace and instill confidence in employees that they can continue to perform their job duties without fear of infection if they take the proper precautions. This is especially crucial for employers who have pregnant employees or employees who have pregnant partners.
    • As employees who work outdoors are at the highest risk of exposure to the Zika virus through mosquito bites, their employers should consider (1) informing them about this risk, (2) providing insect repellants and encourage proper use (per CDC guidelines), (3) ensuring these employees wear clothing that covers exposed skin, and (4) eliminating sources of standing water and training employees to do the same. Per employee request and the reasonable accommodation analysis above, employers should consider reassigning individuals to indoor tasks if they or their partner are or may become pregnant.
    • Healthcare and laboratory workers should be reminded of effective infection control and biosafety practices. These include, but are not limited to, hand hygiene and the use of personal protective equipment (gloves, gowns, masks, eye protection, etc.) to avoid direct contact with blood and other potentially infectious materials. Laboratories should confirm that their facilities meet the appropriate Biosafety Level for the work being conducted.
  • Reinforce Sick Leave Policies. Employers should consider training managers to send sick employees home for the day until they are better and reminding employees that if they are sick or are feeling sick to stay home and take advantage of the employer's sick or other leave policies. Under the Family and Medical Leave Act, employers with more than 50 employees must provide eligible employees with up to 12 weeks of unpaid leave for certain medical situations and there are also many state laws and local ordinances that require employers to provide sick leave (some paid, some not paid).
  • Consider a Travel Opt-Out Policy. The CDC maintains updated travel advisories for areas affected by the Zika virus both in the United States and internationally. Employers may allow all of their employees to opt out of company travel to affected areas, but it cannot limit this offer to pregnant women, women of child-bearing age, or men with pregnant partners. American Airlines, United Airlines, Lufthansa Airlines, Air France and Carnival Cruise Lines are all permitting employees to decline travel to Zika-affected areas without repercussion to their continued employment or advancement.

As we continue to learn more about Zika, its health effects, and its migration into the US, we will update this post accordingly.

Joanne Dynak also contributed to this post.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
McLane Middleton, Professional Association
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
McLane Middleton, Professional Association
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions