By Kristin Cifolelli, courtesy of SBAM Approved Partner ASE
On February 1, 2016, the World Health Organization (WHO) declared a “public health emergency of international concern” regarding the spread of the Zika virus. This is only the fourth such declaration in WHO’s history since the International Health Regulations that govern global responses to pandemics were enacted in 2007. The first was in 2009 with the outbreak of the H1NI swine flu pandemic. The second was in May 2014 with an outbreak of polio, and the most recent in August 2104 with the Ebola outbreak in West Africa.
Generally, the Zika virus is fairly harmless to most people. Common symptoms include fever, rash, joint pain, and conjunctivitis (red eyes) that last from several days to a week. What is raising the alarm, and the public health emergency issued by WHO, is the connection between pregnant women who have contracted the virus and their babies born with a medical condition called microcephaly. Microcephaly is a neurological disorder that results in a birth defect characterized by an abnormally small head and incomplete brain development. The result can be severe developmental issues, brain damage, and sometimes death. In response these concerns, the CDC has issued travel notices for people traveling to regions where the Zika virus is spreading, recommending that enhanced precautions be taken to avoid mosquito bites. The CDC also advises that women who are pregnant should consider postponing travel to these areas.
According to the Centers for Disease Control (CDC), the Zika virus is initially contracted from mosquito bites by infected mosquitoes. Although it is not transmitted by casual contact, it can be transmitted through exchange of blood or bodily fluids including sexual activity. Cases of the Zika virus have been found in approximately two dozen countries, mostly in South America, Central America and in the Caribbean. Cases of Zika have been reported in the U.S., so far all but one occurring in travelers who had been abroad. There is no vaccine to prevent Zika or medicine to treat it once contracted.
Organizations with employees who work in affected countries, or who have employees who will travel to those countries, should be aware of their obligations and be prepared to answer questions raised by employees with concerns.
First and foremost, U.S. employers concerned about the Zika virus cannot prohibit pregnant employees or employees that might become pregnant from travelling to these areas. In the case of Automobile Workers v. Johnson Controls, Inc. (1991), the U.S. Supreme Court ruled that Title VII prohibits employers from instituting gender-specific fetal protection policies. Having a policy that allows men but not women to knowingly work in potentially hazardous occupations is a form of gender discrimination under the law. In addition, employers should not try to determine who might become pregnant or who is pregnant but has not yet announced her pregnancy. Asking questions about an employee’s medical condition may result in violation of the American with Disabilities Act (ADA).
Instead, employers should advise all employees regarding the risks of travel to affected areas and provide education regarding ways the virus is contracted, its symptoms, and preventive measures to take to avoid infection. Ultimately the decision to travel or not should be left to the employee. The CDC has information regarding precautions, fact sheets and other resources posted on their website at www.cdc.gov/zika.
Employers concerned with employees returning from travel abroad generally cannot require them to take a medical exam in order to clear them to return to work. Under the ADA, employers would be able to require a medical examination only if they could demonstrate that the employee “will pose a direct threat due to their medical condition.” Because the virus is not transmitted through casual contact, the ADA standard of “direct threat” would most likely not be met.
On the other hand, what should employers do if they have an employee who refuses to travel as a result of concerns about Zika? Under the Occupational Safety and Health Administration (OSHA) standards, employees may refuse work where there is an objectively “reasonable belief that there is imminent death or serious injury.” A non-pregnant employee refusing to work or travel as a result of concerns over Zika would generally not be protected by OSHA since reasonably effective precautions are available. A pregnant worker may have an argument for protection. Employers have the right to discipline employees who refuse the travel and do not have OSHA protection.
Organizations may also have obligations under the Occupational Safety and Health Administration’s (OSHA) Bloodborne Pathogens (BPP) standards. Employers must have a program, protections, and training for employees who are occupationally exposed to blood or specific bodily fluids.
Employers with employees who work in or travel to the regions of the world impacted by Zika would be best advised to listen to their employees’ concerns and provide regular communication and education regarding the virus and its prevention.