Authors: Attorney John C. Mitby & Law Clerk Elizabeth L. Spencer
Phone: 608-575- 4077
Email: jmitby@hbslawfirm.com

Under regulations from the Occupational Safety and Health Administration (OSHA), employers have a general duty to provide their employees with a place of employment that does not cause or is not likely to cause death or serious physical harm. The World Health Organization has declared the Zika virus to be a “public health emergency of international concern.” While Zika in the United States has not become the health crisis that it has in other nations, OSHA has issued interim guidance for employers because of workers who may be required to travel to affected regions, work with mosquitos, work outdoors in affected locations, or work with infected body fluids.

Zika Virus Basic Facts

Zika is a virus primarily spread through the bite of an infected mosquito but may also be spread by infected individuals through certain body fluids. It is not spread through casual contact. Only 1 in 5 individuals will exhibit the relatively mild symptoms of infection including fever, rash, joint pain, or headaches. However, Zika poses a much greater risk for pregnant women, those who may become pregnant, and those whose partners may become pregnant. Children born to infected mothers may have microcephaly or other severe fetal brain defects.

Legal Concerns

Compliance with Employment Laws: Any employment-related actions must be 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 any local, state, and federal employment laws. If an employer plans to take any action related to Zika they should review these laws to reduce exposure to any employee claims.

Workers Compensation: If an employee becomes infected and can demonstrate that they were infected in the course and scope of employment they will likely be entitled to worker’s compensation benefits.

Unlawful Retaliation: If a female employee of childbearing age or her partner reasonably refuses an assignment to a location affected by Zika and is disciplined for that refusal she may be able to raise an unlawful retaliation claim.

Actions to Take

Communication and Education: OSHA advises that employers should inform and train workers about the risks of exposure to the Zika virus through mosquito bites and direct contact with infectious blood and other body fluids and how to protect themselves. Further, employers should also provide information about Zika infections, including modes of transmission and possible links to birth defects, to workers who are pregnant or may become pregnant or whose partners may become pregnant. Consult, the OSHA interim guidelines at https://www.osha.gov/zika/ for specific recommendations for outside workers, healthcare workers, laboratory workers, and mosquito control workers.

Reinforce Policies: Employers should consider reminding their employees of their provided sick leave policies, Family Medical Leave Act, applicable local statutes, and that employees should seek a prompt medical evaluation if they are concerned that they may have been infected.

Travel Opt-outs: OSHA recommends that employers allow flexibility in required employee travel for those concerned about exposure to Zika. Specifically, OSHA recommends delaying travel to Zika-affected areas for workers who are or may become pregnant or whose partners may become pregnant. The Center for Disease Control (CDC) recommends that women in any stage of pregnancy not travel to areas with active Zika transmission. CDC provides Zika travel information by region which may assist both employers and employees in making travel-related choices. Visit http://wwwnc.cdc.gov/travel/page/zika-travel- information for updated CDC notices on Zika and travel.

Actions to Avoid

Medical Examinations: The ADA prohibits mandatory medical exams unless an employer has reasonable belief that an employee’s medical condition poses a “direct threat” to the workplace. A “direct threat” is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Given that Zika is not spread through casual contact it is not likely a “direct threat.” Further, the Equal Employment Opportunity Commission's Pandemic Guidance states that an employer must take direction from the CDC or state and local public health authorities in determining whether a something is a “direct threat,” and the employer cannot individually make that assessment. Thus, employers should be cautious in requiring medical exams for those they suspect may have been exposed.

Employee Quarantines: In the United States, there have not been major steps to isolate individuals with symptoms or who have been travelling to infected locations. Employers who attempt to impose quarantine may be met with accusations of violating discrimination laws. Thus, employees should be cautious in requiring employees to stay home from work.

Pregnant Employees: Employers should not make personal health-based decisions for their pregnant employees. Numerous federal, state and local discrimination laws prevent employers from inquiring whether an employee or their partner is pregnant or may become pregnant. An employer may inform the employee of the potential risks of Zika but may not make a final decision for the employee based on the fact that they might be pregnant. However, an employer may be expected to make reasonable accommodations for pregnant employees in compliance with some discrimination laws. If a pregnant employee needs to conduct work that would expose her to Zika, the employer should engage her in determining what accommodations, if any, are necessary and reasonable.

Employee Safety: OSHA allows employees to refuse to work when there is an objectively “reasonable belief that there is imminent death or serious injury.” Serious injury from Zika can be prevented by taking precautionary actions, except in the case of pregnant women, thus, this OSHA regulation may not apply to employees refusing to perform job duties. However, employers should consult legal counsel before taking action against an employee for refusing to work.

There are numerous considerations to be made and specific precautions to be taken depending on the type of work a business performs. Employers should encourage employees to speak with their Human Resources coordinator or department and consider directing them to the OSHA Interim Guidance at https://www.osha.gov/zika/. If in the process of determining whether an action or precaution may result in the violation of local, state, or federal law, or if an employer has a concern that an event may result in an employee claim, the employer should consult with an attorney to determine the proper action to take.