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Zika Virus: Appropriate Workplace Responses

The Zika virus has been the topic of much discussion and anxiety for many weeks.  The United States Centers for Disease Control and Prevention (CDC) has now issued travel warnings for more than two dozen countries in the Caribbean, Central America and South America and cases have been reported in at least 13 states and Washington, D.C.  This anxiety has, not surprisingly, crept into workplaces, including those with employees that travel to the affected areas.  This post addresses some of the employment issues raised by the Zika virus.

What is the Zika Virus?

The Zika virus is a mosquito-borne illness that causes fever, rash, joint pain, and conjunctivitis for one in five infected people, and lasts less than a week.  Despite these mild symptoms, a pregnant woman can also spread the Zika virus to her unborn baby, and there have been reports that it may result in a brain birth defect.  While the link has not been confirmed, these reports have raised both awareness and concern around the virus.

While primarily transmitted by mosquitoes, in some cases Zika can also be spread through blood transfusions and sexual contact.  To date, there have been no reported incidents of the virus being passed by casual contact with infected persons, objects or surfaces.  Infected cases have been reported in Mexico, the Caribbean (Barbados, Curacao, the Dominican Republic, Guadeloupe, Haiti, Jamaica, Martinique, Puerto Rico, Saint Martin and the U.S. Virgin Islands), Central America (Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama), South America (Bolivia, Brazil, Colombia, Ecuador, French Guiana, Guyana, Paraguay, Suriname and Venezuela), the Pacific Islands (American Samoa, Samoa and Tonga), and Cape Verde.  The number of reported incidents in the U.S. has risen to include individuals in 13 states and the District of Columbia but Zika-mosquitoes are not present in these regions and at present, there is a very low risk of infection.  Federal officials say 50 of these U.S. cases are associated with travel and one was transmitted by sexual contact.

Be Careful of Supposed Common-Sense Responses that May Violate the Law

Of course employers want to take actions that will avoid infections spreading throughout their workplace, especially where employees work in or will travel to and from affected areas.  But while certain actions may seem to be in the best interest of the company or its employees, they may also violate 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 other local, state and federal laws.  Employers must consider these laws when tailoring their response strategies, and if done correctly, should be able to eliminate exposure both to employee claims and infections.

  • Employee Medical Examinations. The ADA prohibits mandatory medical examinations unless the employer has a reasonable belief that an employee’s medical condition poses a “direct threat” to the workplace i.e., there is a business necessity to do so.  Because Zika does not spread through regular employee-to-employee interactions, including through casual contact (i.e. a handshake, use of a water cooler), there does not appear to be a direct threat to serve as a foundation for this requirement.  Employers therefore should think twice before requiring medical examinations for employees returning from affected areas.
  • Employee Quarantines. Public health agencies have not taken steps to isolate or quarantine individuals who travel to and from affected areas, so any attempt by an employer to do so could be met with criticism and impose potential liability under a myriad of state and federal laws aimed at preserving medical privacy and prohibiting discrimination, including based on national origin.  Therefore, in line with medical examinations, employers should be careful before forcing an employee to stay home rather than reporting back to work.
  • Pregnant Employees. Gender discrimination is a violation of Title VII and other state and local discrimination laws, 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 subjected them to other restrictions to “protect” them against infection.  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.  Further, some discrimination laws require employers to reasonably accommodate pregnant workers, and therefore, if a pregnant worker requests an accommodation, i.e., against traveling to an affected area to perform services on behalf of the employer, then the employer must engage with the employee in an interactive process to determine what accommodation, if any, is reasonable.
  • Employee Safety. OSHA permits employees to refuse to work when there is an objectively “reasonable belief that there is imminent death or serious injury.”  Because Zika can be prevented by taking appropriate precautions, one’s presence in an affected region is not likely to cause imminent death or serious injury, absent possibly where someone is pregnant.  For this reason, OSHA’s regulation may not apply to employees who refuse to perform their job duties in an effort to protect themselves against the Zika virus.

So What Should Employers Do?

So if employers cannot require employees to undergo medical examinations, cannot quarantine employees who have recently traveled to infected regions, and cannot enforce targeted travel prohibitions, what should they do?

  • Communication/Education. Employers should educate employees about the risks of travel to affected regions, the possible symptoms of Zika (fever, rash, joint pain, and red eyes), the modes of transmission (mosquitoes, blood transfusions, and sexual contact), and proper precautions to avoid infection (outlined here by the CDC).  Appropriate communication should effectively undercut any campaign of misinformation that has navigated its way through the workplace and instill confidence in workers that they can continue to perform their job duties without fear of infection if they take the proper precautions.  This is especially crucial for employers who have pregnant employees or employees who have pregnant spouses or partners who travel to affected areas.
  • Reinforce Sick Leave Policies. Employers should consider training managers to send sick employees home for the day until they are better and reminding employees that if they are sick or are feeling sick to stay home and take advantage of the employer’s sick or other leave policies.  Under the Family and Medical Leave Act, employers with more than 50 employees must provide up to 12 weeks of unpaid leave for certain medical situations and some jurisdictions have mandated sick leave benefits.
  • Consider a Travel Opt-Out Policy. Employers may allow all of their employees to opt out of company travel to affected areas, but it cannot limit this offer to pregnant women, women of child-bearing age, or men with pregnant partners.  American Airlines, United Airlines, Lufthansa Airlines, Air France and Carnival Cruise Lines are all permitting employees to decline travel to Zika-affected areas without repercussion to their continued employment or advancement.

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Natalie C. Groot is a Mintz attorney who litigates employment disputes on a wide variety of employment and labor matters. Natalie's litigation practice includes non-competition and non-solicitation agreements; discrimination, sexual harassment, and retaliation claims; and wage and hour compliance matters.