Taking the sting out of Zika: what employers need to know

by Lisa Berg

On February 1, 2016, the World Health Organization declared an international health emergency associated with the spread of Zika virus, and the U.S. Centers for Disease Control and Prevention (CDC) began advising pregnant women or those considering becoming pregnant to avoid travel to places with Zika outbreaks. To date, more than a dozen people have contracted the virus in Florida, and it could reach even further as Florida, Texas, and other parts of the Gulf Coast are considered at highest risk for local spread of the mosquito-borne virus. 

The summer Olympics kicks off Friday with the opening ceremony, but many athletes have decided to stay home because of concerns about the Zika virus. As an employer, how do you handle an employee’s refusal to travel to a Zika-infected region? Can you require that an employee who has traveled to a Zika-infected region submit to a medical examination before returning to work? Do you have any special obligations to employees who work outside and could be exposed to Zika-carrying mosquitoes?

Zika confirmed in the United States
Florida recently confirmed the first known local transmission of the Zika virus through infected mosquitoes in the continental United States. On Friday, July 29, 2016, the state of Florida informed the CDC that it is highly likely that four residents contracted the Zika virus from local mosquitoes.  None of the four patients had traveled to Zika-infected areas, but all had been to the Wynwood neighborhood of Miami, a small, one-square-mile area just north of downtown and a popular tourist destination. By Monday, Governor Rick Scott announced that the Florida Department of Health has identified 10 additional people with the Zika virus who likely contracted it locally through a mosquito bite.

Below are some frequently asked questions and answers to help employers better understand the disease and how to handle issues that are likely to arise in the workplace.

Q&A
Q. What is Zika?

A. Zika is caused by the Zika virus, which is spread to people primarily through the bite of infected mosquitoes of the Aedes aegypti and Aedes albopictus varieties.

Q. What are the symptoms?

A. Symptoms are generally mild and include fever, rashes, joint pain, muscle pain, headaches, and conjunctivitis (pink eye). Some people have no symptoms. Zika infection during pregnancy, however, can cause a serious birth defect called microcephaly (characterized by an abnormally small head) and other severe issues. Although rare, there have been cases of Guillain-Barre syndrome, an uncommon condition of the nervous system that causes temporary paralysis. No vaccines or treatments are currently available to treat or prevent Zika infections.

Q. How do people become infected with Zika?

A. Zika is spread primarily through the bite of an infected mosquito from the Aedes species. A pregnant woman can pass Zika to her fetus during pregnancy or birth. In addition, a person who is infected with Zika can pass it to sexual partners via bodily fluids. That implies that Zika may be transmitted through contact with blood or other potentially infectious materials. However, the evidence is not clear at this time.

Q. What is the best way for employers to protect their employees from being bitten by mosquitoes while on the job?

A. The Occupational Safety and Health Administration (OSHA), together with the CDC, has published a fact sheet (www.osha.gov/Publications/OSHA3855.pdf) on protecting workers from workplace exposure to the Zika virus. The fact sheet is not a standard or regulation and creates no new legal obligations. Rather, it offers recommendations to assist employers in providing a safe and healthful workplace. The fact sheet provides interim guidance on protecting outdoor workers, healthcare and laboratory workers, mosquito control workers, and business travelers from occupational exposure to the virus. The Florida Department of Health has launched a Zika virus information hotline (1-855-622-6735).

Q. What steps do the CDC and OSHA recommend employers take to prevent infection?

A. The CDC and OSHA recommend employers take the following precautions:

• Increase on-site pest control measures.
• Drain standing water.
• Eliminate areas where mosquitoes breed at the worksite.
• Educate employees on Zika prevention. For example, the following instructions may help protect employees:

• Avoid areas of standing water where mosquitoes may breed.

• Use screens on windows and doors.

• Use insect repellant that contains DEET, picaridin, or another active ingredient registered with the Environmental Protection Agency on skin that is not covered by clothing. Always follow label precautions.

• Wear clothing that covers all skin, including socks that cover the ankles and lower legs and hats with mosquito netting to protect the face and neck. Treat clothing with products containing permethrin (spray permethrin on clothing and gear only—not directly on the skin).

• Discard sources of standing water (e.g., tires, buckets, cans, bottles, and barrels) whenever possible to reduce or eliminate mosquito breeding areas.

Q. Can an employer quarantine employees who have been to Wynwood or traveled abroad to areas with high rates of the Zika virus (e.g., Brazil)?

A. Public health officials have not quarantined any person returning from Zika-infected regions, and Zika is not known to be transmitted during casual contact. Therefore, employers risk liability under discrimination and medical privacy laws if they attempt to isolate or quarantine employees.

Q. Can an employer require an employee who is suspected to have been to Wynwood or a Zika-infected region to undergo a medical examination before returning to work?

A. Under the Americans with Disabilities Act (ADA), an employer can require a medical examination if it is job-related and consistent with business necessity. So unless an employer has a reasonable belief, based on objective evidence, that an employee will pose a direct threat to herself or others because of a medical condition, it is not advisable to require a medical examination. Moreover, because Zika is not known to be transmitted through casual contact, an employer may have a hard time meeting that burden.

Q. Can an employer fire an employee who refuses to perform her job or travel to a Zika-infected region because of fear of contracting the virus?

A. Under the Occupational Safety and Health Act’s (OSH Act) General Duty Clause, employers are required to maintain a workplace that is “free from recognized hazards” that may cause “serious injury or death.” An employer’s obligations under the General Duty Clause change with the circumstances. Under the OSH Act’s regulations, if an employee has “no reasonable alternative” and “refuses in good faith to expose [her]self to a dangerous condition,” then the employer is prohibited from discriminating against her. The dangerous condition must be one that would cause “a reasonable person, under the circumstances then confronting the employee, [to] conclude that there is a real danger of death or serious injury,” and the employee must have sought and been unable to obtain correction of the dangerous situation from the employer.

In addition, Paragraph 11(c) of the OSH Act prohibits employers from retaliating against workers for raising safety and health concerns. Unless the employee is disabled, pregnant, seeking to become pregnant, or seeking to impregnate a woman, the Zika virus likely does not rise to that level. Note that a pregnant employee’s request not to be sent to affected areas or countries may be deemed a request for a reasonable accommodation. Employers should consult with legal counsel because those issues are extremely complex and fact-specific.

Q. Can an employer ban a pregnant employee from traveling abroad for fear of harming her fetus?

A. No. That would likely be deemed a form of gender or pregnancy discrimination. In its enforcement guidance on pregnancy discrimination, the Equal Employment Opportunity Commission (EEOC) emphasizes that “an employer’s concerns about risks to the employee or her fetus will rarely, if ever, justify sex-specific job restrictions for a woman with childbearing capacity.” Instead, employers are encouraged to educate all employees on the risks of Zika.

Employer takeaway
Employers should not overreact to the Zika outbreak. Although local transmission of the virus in Florida has garnered international media attention, most cases of Zika are mild. The virus appears to pose the greatest risk when it infects pregnant women. Therefore, employers should follow developments from the CDC, OSHA, the World Health Organization, local public health departments, and other reliable medical sources and consult with legal counsel before taking any action in the workplace concerning Zika.

Lisa Berg is an employment lawyer and shareholder in the Miami office of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. She may be contacted at lberg@stearnsweaver.com.

Need to learn more? How will you respond if one or more of your employees is infected with Zika, or at the very least what is the virus’ potential impact on the workplace? Don’t wait for the worst-case scenario to happen—prepare now by attending our all-new webinar Zika Virus Management Guidelines: Protecting Your Workforce During this Global Health Emergency on August 10 or listening to an earlier webinar on-demand. Our BLR legal editors, Ana Ellington and Catherine Gray, will deliver a timely briefing on your organization’s legal obligations and reveal safety best practices in the face of the Zika outbreaks. This fast-paced webinar will cover your compliance obligations from an HR and a safety perspective and give you valuable advice for managing this deadly disease. For more information about the August 10 webinar, click here. For more information about the on-demand webinar, click here.