Zika and the U.S. workplace



February 18, 2016

Employment Law Alert

Author(s): Jeffrey M. Tanenbaum, Rachel L. Conn

Just as the hysteria over Ebola has calmed down, a new illness, Zika virus disease (Zika), is stirring up panic throughout the Americas, specifically with outbreaks occurring in Central and South America. However, as of the date of this Alert, Zika does not pose a significant risk for U.S. workplaces. Nevertheless, because of the media frenzy, and the fact that Zika may become a concern for U.S. workplaces in the near future, it is appropriate for employers to take steps to educate their employees and to prepare for a potential outbreak.

What is Zika and how is it transmitted?

Zika is a mosquito-borne virus that is primarily transmitted through the bite of an infected Aedes mosquito. Symptoms are generally mild and include fever, skin rashes, conjunctivitis, muscle and joint pain, malaise and headache. And most often infection requires no specific treatment. Although the virus is mild for most, Zika has become a greater concern for pregnant women because of the possible link to a severe birth defect, microcephaly, and evidence that Zika may live in semen for a period of time and may be transmissible from a pregnant mother to her fetus. There is evidence that Zika can be transmitted through sexual contact (to date the only known cases of transmission of Zika in the U.S. have been with individuals who had sexual contact with an individual who was infected in a country in which there was an outbreak). This implies that Zika may also be transmitted through contact with blood or other potentially infectious materials (OPIM); however, the evidence is not clear at this time.

Currently the largest Zika outbreaks are in South and Central America but there have been Zika outbreaks elsewhere and many public health officials believe that the next large outbreak is likely to be in the Caribbean. While Aedes mosquitos exist in the U.S., to date there is no evidence that these mosquitos carry Zika. However, given the ease with which some viruses can spread (such as by an uninfected mosquito biting an infected person and then biting others) and the ease with which infected mosquitos can travel on a person or products in transmit, it is prudent to assume that mosquitos carrying Zika will eventually be found in the U.S.

Zika and occupational safety and health programs

There is no Fed/OSHA or state/OSHA standard expressly regulating Zika. However, unless and until demonstrated otherwise, it is prudent to assume Zika is a bloodborne pathogen and an employer’s Bloodborne Pathogens Program is applicable. Although virtually all health care employers need a written Bloodborne Pathogens Program, any other employer with a workplace where there is a reasonable expectation of exposure to blood or OPIM should also have one.

Although not expressly required by any OSHA standards, we also highly recommend that all employers have a written communicable illness policy. Such a policy should include the following:

  • An overview of what illnesses are covered (any communicable illness that can reasonably be transmitted in the workplace from the common cold to newly discovered viruses, TB, etc.). Of course, for employers, such as those in the health care industry, who must have much more detailed programs governing illnesses such as TB this policy should reference such policies.
  • An overview of what the employer does to minimize transmission of illnesses in the workplace and how the employer responds to outbreaks.
  • Employee illness reporting obligations.
  • Reference to benefits available to employees who are ill.
  • Reference to the employer’s sick leave policies.
  • A description of the employer’s policies with regard to travel restrictions when there are outbreaks.
  • A description of how the employer will communicate with employees in the event of an outbreak.
  • A description of what the employer will do to keep abreast of developments when there is an outbreak.

As you can see, such a policy not only provides helpful information to employees but provides an outline for an employer when taking preventative steps and responding to any outbreak. Since outbreaks can happen quickly, it is important to prepare in advance and such a policy best allows an employer to do so.

Once an employer has adopted such a policy it is then much easier to prepare an outbreak-specific policy that follows the basics of the communicable illness policy with regard to any particular outbreak, such as Zika.

At the present time, such a Zika policy should include the following:

  • What is Zika?
  • How is Zika transmitted?
  • Who is at risk of being infected?
  • What are the symptoms of Zika?
  • What employees should do if they are planning on travelling to any area where a Zika outbreak is ongoing.
  • What an employee should do if he/she is already in an area where a Zika outbreak is taking place.
  • Information on what an employee (and the employee’s family) can do to minimize exposure to Zika.
  • Information about other steps the company is taking in response to Zika.

Of course, it is important during any outbreak, for employers to closely follow developments and to obtain information from reputable sources. The principal sources of information should generally be the CDC, WHO and local public health departments (it would also be prudent to vet any information from foreign governments and some “health organizations” as they have recently been issuing some strange Zika-related advice to pregnant women). In addition, as conditions change a policy, such as the Zika program described above, will also need to be modified.

Please note that these policies should include information not only about how an employee can stay safe but how that employee’s family can stay safe as well. It is less likely that an employee will become ill if family members do not become ill and it is much more likely that employees will be coming to work if they believe that their families are safe.

Do not overreact!

It is very important that employers not overreact and only proceed with good information supported by current medical knowledge. A few common areas where questions arise are as follows:

Travel restrictions

Employers may consider limiting or eliminating business travel to areas where there is a Zika outbreak. However, there is no current medical evidence that would support a ban on employees travelling to such areas for personal reasons.

Employees who are pregnant or are of child bearing age

The evidence that Zika can cause birth defects may cause employers to want to take steps to protect employees who are either pregnant or of childbearing age. However, such “paternalistic” policies are problematic and can easily lead to discrimination.

It is certainly appropriate for an employer to provide an accommodation to an employee who is pregnant or of childbearing age who may otherwise have to travel for work to an area where there is a Zika outbreak. However, inquiring as to whether or not an employee is pregnant or establishing special rules for such employees would be inappropriate.

Medical testing upon return from an area where there is a Zika outbreak

There is no evidence that Zika can be transmitted from person to person except by sexual contact. As a result, it is not currently advisable for an employer to establish a requirement of medical testing before allowing an employee who has been to an area where there is a Zika outbreak to return to work.

Employees from areas where there is a Zika outbreak

Employers will need to be very careful not to engage in national origin discrimination. As noted above, there is no current evidence that Zika can be transmitted person-to-person in a reasonably anticipated workplace environment. As a result, it would be inappropriate to establish any restrictions on employees based on their national origin from an area where there has been a Zika outbreak. This would also be true even with evidence of workplace person-to person-contact, but it is clearly so in the absence of such evidence.

Employees who refuse to work with other employees who are returning from areas where there is a Zika outbreak

Employers may also have employees who refuse to work with other employees returning, whether for business or personal reasons, from areas where there are Zika outbreaks. As stated above, there is no current evidence that Zika can be transmitted person-to-person in a reasonably anticipated workplace environment. As such, based on current evidence, working with a person who has Zika or is suspected of having Zika does not pose a real danger of death or serious injury and thus there should be no duty to accommodate an employee’s refusal to work with employees returning from Zika outbreak areas. As always, educating the concerned employee on Zika would be the first step in any such conversation.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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