News that the Zika virus has reached the United States may be prompting employers to think more closely about employee safety and what steps should be taken to address disease prevention and management in the workplace.
What Is Zika?
According to the Centers for Disease Control and Prevention (CDC), Zika is a virus that is spread to humans primarily through the bite of an infected mosquito. The CDC states that many people infected with Zika will not have any symptoms or will experience only mild symptoms that may include fever, rash, joint or muscle pain, conjunctivitis (pink eye), or headache. Symptoms, if they appear, generally last several days to a week, and most people infected with Zika do not feel sick enough to seek medical attention. As a result, many people may not realize that they have been infected.
While Zika is primarily mosquito-borne, a person infected with Zika can also transmit the disease via sexual contact, even if the infected person is not experiencing symptoms at the time. Pregnant women infected with Zika can also transmit the virus to the fetus during pregnancy or around the time of birth.
Zika infection during pregnancy has been found in some cases to cause serious birth defects including microcephaly and related brain anomalies, and also has been linked to increased risk of eye problems, hearing loss, impaired growth, and other complications following birth. For adults, Zika has been linked to an increased risk of Guillain-Barré Syndrome, which is an uncommon nervous system condition in which a person’s own immune system damages nerve cells, causing muscle weakness and sometimes paralysis.
The Zika virus can be detected by a blood or a urine test. Currently, there is no specific medicine to treat Zika virus disease.
Managing Employee Exposure
The World Health Organization (WHO) has declared a global health emergency over the spread of Zika, with at least 66 countries and territories reporting evidence of Zika virus transmission. As a result, the CDC has issued travel notices for a number of countries and territories in the Caribbean, Central America, South America, and the Pacific Islands, as well as Mexico and Cape Verde, where Zika transmission has been reported. In addition, Zika transmission by mosquitos has been reported in Wynwood, Florida, a neighborhood of Miami. As of the date of this post, all of the CDC’s travel notices are designated Alert Level 2, which advises travelers to practice enhanced precautions while traveling. Presently, no affected location has been designated Alert Level 3, which advises against nonessential travel in all cases.
Nevertheless, learning that an employee has recently traveled to an affected area can raise concerns about the employee’s health and the safety of others in the workplace. Employers must remember, however, that the Americans with Disabilities Act (ADA) places certain restrictions on the kinds of inquiries that may be made into an employee’s medical status.
The ADA permits an employer to request medical information or order a medical examination of an employee when the employer has a reasonable belief, based on objective evidence, that the employee poses a “direct threat” because of a medical condition. In its 2009 Guidance on Pandemic Preparedness in the Workplace and the Americans with Disabilities Act released in the wake of the H1N1 flu pandemic, the Equal Employment Opportunity Commission (EEOC) 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.”
As discussed, Zika is primarily spread to humans through the bite of an infected mosquito, and human-to-human transmission presently has been reported only via sexual contact or during pregnancy. There is currently no evidence that an individual infected with Zika can spread the virus via casual contact, such as through touching, sneezing or coughing, or sharing food or drinks. As a result, there is presently no objective evidence that an employee infected with Zika may pose a direct threat in the workplace. Employers therefore should not require employees who have recently traveled to an affected area to provide any medical information or submit to a medical examination as a condition of returning to work.
However, employers must ensure that they are in compliance with employee safety laws and regulations as they relate to Zika virus. This includes companies that may have employees traveling to or temporarily or permanently stationed in affected areas, and particularly employees who will be performing outdoor work. The Occupational Safety & Health Administration (OSHA) has issued interim guidance on protecting workers from occupational exposure to Zika virus. The guidance recommends that employers take several steps to protect workers who perform outdoor duties, including:
- informing workers about their risks of exposure to Zika virus through mosquito bites and training them on how to protect themselves;
- providing insect repellents and encouraging their use;
- providing workers with clothing that covers their hands, arms, legs, and other exposed skin and considering providing hats with mosquito netting to protect the face and neck;
- removing sources of standing water (e.g., buckets, barrels, etc.) wherever possible to reduce or eliminate mosquito breeding areas; and
- if requested by a worker, considering reassigning an employee who indicates that she is or may become pregnant, or who has a sexual partner who is or may become pregnant, to indoor tasks to reduce their risk of mosquito exposure.
Zika and Work-Related Travel
As noted above, the CDC’s travel notices currently do not advocate a total travel ban for any of the affected areas, but rather advise travelers to practice enhanced precautions while traveling. However, all of the travel notices do advise that pregnant women should avoid travel to affected locations. The travel notices further advise female travelers who are trying to become pregnant to speak with their healthcare provider about their travel plans and to take special precautions to prevent mosquito bites while in the affected locations. Individuals who have a pregnant partner and have traveled to one of the affected locations are also advised to avoid sexual contact or to use barrier protection at all times during the pregnancy.
As a result, employers whose businesses require employee travel to affected areas may wonder what, if any, steps they should be taking to protect vulnerable employees. The following general guidance should be kept in mind:
- As discussed above, the ADA limits employer inquiries into an employee’s health condition or medical status. As such, employers should avoid asking employees whether they are or plan to become pregnant or inquiring about a pregnant employee’s medical status, even if such employee may potentially be asked to travel to an affected area.
- While employers are free to institute a complete ban on work-related travel to affected areas for all employees, they should avoid unilaterally placing travel restrictions on specific employees. This is true even if an employee has stated that she is pregnant or plans to become pregnant in the near future (or has a partner that is or plans to become pregnant). Under the ADA and the Pregnancy Discrimination Act (as well as related state and local laws), employees are not required to accept accommodations that they do not want, even if an employer is offering the accommodation with the safety of the employee or the employee’s fetus or partner in mind. Imposing an individual travel restriction without the consent of an employee therefore may result in claims of discrimination on the basis of sex or disability.
- However, employers should provide all employees who may be asked to travel to an affected area on business with a mechanism for requesting an accommodation or discussing their concerns about the travel. Employers may then consider each situation on a case-by-case basis and take appropriate individualized action. In cases of a pregnant employee or one who plans (or whose partner plans) to become pregnant in the near future, an employer may be required to allow the employee to refrain from or postpone travel to affected areas or be assigned to indoor duty while in affected areas as a reasonable accommodation.
- Employers should provide employees traveling to affected areas with the latest information issued by the CDC on travel precautions. The CDC’s travel notices provide guidance on proper precautions for travelers to take to reduce the risk of Zika infection. These include covering exposed skin, using insect repellents that contain DEET or other approved ingredients, using specially treated clothing and gear, and staying and sleeping in screened-in, air conditioned rooms wherever possible (or sleeping with a mosquito bed net). Employers should also consider providing or reimbursing employees for the purchase of recommended protective measures, such as insect repellant or protective clothing.
- Employers should also consider reimbursing for the cost of Zika virus testing for employees who may wish to take advantage of it following work-related travel to an affected area. (However, as noted above, employers should not require such testing as a condition of returning to work). While there is currently no cure or treatment for Zika infection, such testing would allow employees to be aware of their infection status so that they can take appropriate precautions with regard to pregnancy.
Information about Zika virus is constantly evolving, so employers should continue to monitor the CDC, WHO and OSHA websites for the latest on appropriate precautions, including changes to travel notices.
Employers should also consider implementing a communicable disease response policy or reviewing any policy that may already be in place. At a minimum, such a policy should address mechanisms for distributing updated information to employees regarding communicable diseases that may impact the workplace and appropriate precautionary measures, as well as provide a means for employees concerned about workplace exposure to address such concerns with human resources and to request accommodations where appropriate. Having such an action plan already in place will best position an employer to manage Zika or any future health crises that may impact their workforce and help to mitigate legal risks to the greatest extent possible.