This article originally was published by the Association of Corporate Counsel’s Compliance & Ethics Committee.
The Zika virus has been around for nearly 70 years, but an outbreak earlier this year has put the disease squarely on the public’s radar. In fact, on February 1, 2016, the World Health Organization declared Zika and the spread of the disease to be a “public health emergency of international concern.”
The workplace is not immune from Zika concerns. In fact, in many cases, the workplace will likely be at the forefront of both preventing the spread of and leading the response to the disease.
In response to the international crisis, the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) jointly issued new Interim Guidance for Protecting Workers from Occupational Exposure to Zika Virus in April 2016 designed to protect workers from occupational exposure to the Zika virus.
The following are 10 things employers should know in light of the Zika outbreak and the federal response to it:
- The Guidance recommends that employers take proactive steps to prevent or minimize worker exposure to the Zika virus, including educating workers and providing them with insect repellant and protective clothing appropriate for their jobs. Employers should consider supplying or reimbursing employees for these protective materials and supplies, and requiring the use of same by all workers.
- Employers should educate their employees on the methods of transmission of the Zika virus and protective measures. Although the potential impact of the Zika virus is not limited to any specific industries or types of employees, the Guidance specifically addresses the following, broad groups of workers: outdoor workers, mosquito control workers, healthcare and laboratory workers, and business travelers. Employers with workers in these industries and positions should pay particular attention to the Guidance and any updates thereto.
- Employers should consider allowing employees flexibility with regard to business travel to areas with active Zika transmission.
- Under the Family and Medical Leave Act (FMLA), eligible employees incapacitated by a “serious health condition,” or who need to care for a covered family member incapacitated by a “serious health condition,” may be entitled to up to 12 weeks of leave. The Zika virus and its associated symptoms may qualify as a “serious health condition,” and thus trigger FMLA coverage if an infection occurs.
- Under Occupational Safety and Health Act (OSHA) regulations, if an employee has “no reasonable alternative” and “refuses in good faith to expose himself to a dangerous condition,” then the employer is prohibited from discriminating against the employee. Employee fears about travel to geographic regions with active Zika transmission may trigger this protection.
- In compliance with Title VII, employers must ensure that they do not discriminate against employees who are Hispanic or who have visited the Caribbean, Central, or South America. When addressing workplace concerns about Zika, all employees, regardless of their race or national origin, should be treated fairly and equally.
- Employers should not discriminate against women, or prevent women from traveling on business trips to affected areas, based on concerns about the effects of Zika as it relates to gender or pregnancy. However, if an employee requests postponement or modification of travel, such requests should be thoughtfully considered.
- Employers must abide by any relevant medical privacy regulations and considerations related to any sick employee.
- Employee travel to a Zika outbreak area may trigger Americans with Disabilities Act (ADA) issues. 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 health authorities in determining whether an illness is a direct threat, and cannot make that assessment “on subjective perceptions” or “irrational fears.” Because the Zika virus is not transmitted person-to-person in casual conduct, the ADA “direct threat” standard is likely not met in most workplaces at this time.
Click here to read more from Ashley Kutz Kelley on how employers should respond to and prevent the Zika virus outbreak in the workplace and limit potential liability related thereto.