Read the following Q & A developed by attorney THOMAS BENJAMIN HUGGETT on January 29, 2016 to determine what liabilities (if any) exist for employers when requiring workers to travel to the Zika hot spots or dealing with workers who have recently traveled to such areas.
“The Zika virus is receiving significant press coverage, including reports that it may cause birth defects if pregnant women are exposed. Employers may wonder if they have obligations to protect or accommodate employees under state and federal law, including the Occupational Safety and Health (“OSH”) Act and the Americans with Disabilities Act (“ADA”). Following are some frequently asked questions and guidance for employers regarding the virus.
1. How is the Zika virus transmitted?
A. Zika is transmitted primarily by mosquito bites.
According to the Centers for Disease Control (“CDC”), Zika is not transmitted by casual contact from person to person. The only two documented cases of person-to-person Zika transmission are where there was an exchange of blood or bodily fluids in childbirth or sexual activity.
Transmission of Zika from contact with objects and surfaces has not been reported.
2. What are the symptoms of Zika?
A. Zika causes no symptoms and leads to no lasting harm to most people. Only one in five people infected with the virus develop symptoms, which can include fever, rash, joint pain and red eyes. The virus is believed to cause some birth defects if pregnant women are exposed to the virus.
3. Is there a test for Zika?
A. There is as yet no inexpensive reliable test for Zika. Sophisticated molecular testing of a blood or tissue sample from the first week of infection is required to detect Zika.
4. Is there a preventative vaccination for the Zika virus?
A. There is presently no vaccination for the Zika virus. Individuals can protect themselves by preventing mosquito bites.
5. Is travel to the Caribbean, Central and South America prohibited?
A. The CDC updated its travel health notices to include a Warning Level 2 categorization for two dozen destinations in the Caribbean, Central and South America. This warning level recommends practicing enhanced precautions for avoiding mosquito bites.
6. Can employers refuse to allow employees to travel?
A. No. Employers cannot prohibit otherwise lawful conduct when an employee is off duty.
7. Can an employer require a medical examination for an employee who has traveled to an area with a Zika outbreak before they return to work?
A. Generally, no. Under the ADA, employers can require a medical evaluation only if it is justified by business necessity. In this context, the ADA permits an employer to request medical information or order a medical examination when the employer has a reasonable belief, based on objective evidence, that an employee will pose a “direct threat” because of a medical condition. The Equal Employment Opportunity Commission’s Pandemic Guidance states that an employer must take direction from the CDC or state/local public health authorities in determining whether an illness is a direct threat, and cannot make that assessment “on subjective perceptions . . . [or] irrational fears.” Because Zika is not transmitted from person to person in causal contact the ADA standard is probably not met in most workplaces at this point in time.
8. Can employers impose a quarantine for employees returning from travel to the Caribbean, Central and South America so that they do not come into the workplace for that period?
A. Because Zika is not known to be transmitted from person to person in casual contact, public health agencies have imposed no quarantine on persons returning from areas in which the Zika virus has been detected. Employers who isolate or quarantine such individuals when public health agencies have taken no such action risk liability under medical privacy laws, disability discrimination laws, state wage and hour laws, as well as potential race and national origin discrimination claims.
9. What should employers do with co-workers who are nervous because of travel?
A. Employers should educate their employees on the methods of transmission of Zika, explain that transmission risk is very low, assure them that the situation is being monitored by public health agencies, and emphasize good mosquito prevention practices.
Employers are responsible for the conduct of their managers and employees and must ensure they do not discriminate against employees who are Hispanic or who have visited the Caribbean, Central or South America. Employers must also follow all medical privacy considerations related to any sick or ill employee.
10. Does the Occupational Safety and Health Administration (OSHA) or its state plan counterparts require employers to have a Zika policy?
A. OSHA’s Bloodborne Pathogens (BBP) standard requires employers to have a program, protections and training for employees who are occupationally exposed to blood or specific bodily fluids. This standard extends to cleaning up blood in the workplace. All employers with a BBP program should review their BBP program for any issues arising specifically from Zika that are not already included in the program.
11. May an employee refuse to perform his or her job or travel based on concerns about Zika?
A. Under the OSH Act, employees may refuse to work only where there is an objectively “reasonable belief that there is imminent death or serious injury.” Refusing to work without such an objective belief may result in disciplinary action by the employer. Given that Zika is spread by mosquito bites, which can be prevented with appropriate precautions, this standard is unlikely to be satisfied absent particular factual circumstances such as pregnancy. However, given the level of public interest and concern, extreme care should be taken to avoid adverse employment actions at this time due to a refusal to work. Use of counseling, education and other available managerial skills are appropriate to avoid confrontations and legal challenges.”
Immediately after the publication of this article, the CDC determined Zika is able to transmitted person to person via sexual contact. Will this change the outlook for employers? Maybe not. But, we must be vigilant and listen closely for more updates as they develop.
Until Next Time, Be Audit-Secure!