Zika: What Employers Need to Know
“No local mosquito-borne Zika virus disease cases have been reported in U.S.,” according to the Centers for Disease Control and Prevention as of Feb. 24. There have, however, been at least 107 travel associated cases reported.
With health officials scrambling to gather and disseminate information about the latest worldwide health concern, there are still many unknowns about the disease, how it is spread, and how to prevent it. Employers trying to protect their workers need to stay abreast of the latest information and ensure their responses don’t violate the law.
“Some health outbreaks would raise quarantine issues and medical testing questions due to the risk that infected individuals can infect others in the workplace,” said Patricia Pryor, an attorney with Jackson Lewis in Cincinnati. “The Zika virus does not have the same communicable risk. Therefore, employers do not face the same concerns this time.”
In fact, the vast majority of people who contract the disease are unaware they have it. Symptoms, including fever, rash, joint pain, and conjunctivitis, are typically mild and last for several days to a week. Most people with Zika virus are not hospitalized and “very rarely die,” according to the CDC.
Those who may be at risk are pregnant women because the virus can spread to a fetus and has been inconclusively linked to a serious birth defect. The situation creates several employment issues, especially for companies with traveling and/or outdoor workers.
Zika virus is hardly new. It was discovered in 1947. Outbreaks had been reported in topical Africa, Southeast Asia, and the Pacific Islands, the CDC said.
The virus became more of a concern last year when the Pan American Health Organization issued an alert after the first confirmed case was reported in Brazil. Recently, the World Health Organization declared Zika virus a public health emergency of international concern, and the CDC issued travel warnings for countries in the Caribbean, Central America, and South America.
“Some health outbreaks would raise quarantine issues and medical testing questions due to the risk that infected individuals can infect others in the workplace. The Zika virus does not have the same communicable risk.” — Patricia Pryor, attorney, Jackson Lewis
The virus is spread primarily through the bite of an infected Aedes species mosquito, mainly during the daytime. So far, that species of mosquito has not been detected in most of the U.S. However, there have been at least 39 reports of local mosquito-borne transmissions of the disease in Puerto Rico, the U.S. Virgin Islands, and the American Samoa.
In some cases, the virus can also be spread through blood transfusions and sexual contact.
The primary concerns for the workplace center on pregnant women and their partners. Employers may be faced with a situation in which a pregnant worker wants to postpone work-related travel to an affected region.
“Right now there is certainly a panic going on, as we’ve seen in the past with the Avian flu, the swine flu, Ebola, etc.,” Pryor said. She advises employers to use “common sense” in these situations.
“If they’ve got a pregnant employee who says, ‘hey, I shouldn’t go there,’ the employer doesn’t want to make that decision for them. They don’t want to send them off and have them get bitten and something happens; it’s not the lawsuit the employer wants,” Pryor said.
“It’s important to advise pregnant employees to talk with their doctors and get a recommendation. If the doctor says they can’t go, then it’s a matter of whether the employer can accommodate that. In most circumstances, hopefully, they can.”
There may be cases where workers not seemingly at risk refuse to travel to areas where the virus is present. Or employees who work outdoors may be fearful of contracting the virus. Experts say in general employees cannot refuse to work unless there is an objectively reasonable belief that there is a risk of imminent death or serious injury.
“If you look at what they’re saying about the virus, other than pregnant employees, the risk is pretty low and the harm is not too much different from the common cold and other bugs,” Pryor said. “Without a reasonable expert saying ‘yes, you are in danger,’ then it really isn’t something the employee can refuse.”
However, employers may want to soften their stance in this situation. “On the practical employment side, you want to try to work through that for employee goodwill,” Pryor said.
At the same time, employers should not try to prevent specific employees from traveling. “Gender discrimination is a violation of Title VII [of the Americans with Disabilities Act], and a claim could arise if employers enforced a travel prohibition against pregnant women or women of child-bearing age, or against men with pregnant partners or otherwise subject them to other restrictions to ‘protect’ them against infection,” said Natalie Young, an associate at Mintz Levin in Boston.
“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.”
The most important thing employers can do is make sure they provide their employees with updated information about the virus. The CDC has a website devoted to the virus with constant updates.