This article originally was published in the Spring 2016 edition of the American Bar Association’s Tort Trial Insurance Committee News.
On April 22, 2016, the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) jointly issued new guidance aimed at protecting workers from occupational exposure to the Zika virus. The Interim Guidance for Protecting Workers from Occupational Exposure to Zika Virus (“Guidance”) is a direct reaction to growing outbreak of the Zika virus in the United States and in South and Central America. The Guidance clearly and unequivocally states that the purpose is to provide “employers and workers with information and guidance on preventing occupational exposure to the Zika virus.”1
The Zika virus was first identified in Uganda in 1947 in rhesus monkeys. It was subsequently identified in humans in 1952. The Zika virus can be transmitted by infected mosquitos and, according to the CDC, it can also be transmitted through exchange of blood or bodily fluids in childbirth or sexual activity.
Common symptoms of Zika virus infection include fever, rash, joint pain, red or pink eyes, and in some cases muscle pain and headache. There is no vaccine to prevent the Zika virus and there is no specific treatment for individuals who become infected.
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 WHO estimates that three million to four million people across the Americas will be infected with the virus within the next year. The link between pregnant women infected with the Zika virus and a serious but rare birth defect in babies has raised significant concerns for everyone, including employers.
Summary and Impact of the Guidance:
Although the potential impact of Zika virus infections 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.2
With regard to outdoor workers, the Guidance recommends that employers consider taking proactive steps to prevent or minimize worker exposure to Zika:
- Inform workers about the risks of Zika exposure and educate them on ways to protect themselves;
- Provide EPA-approved insect repellants (at the employer’s expense) along with other tools, equipment, and supplies;
- Provide workers with, and encourage them to wear, clothing that covers their hands, arms, legs, and other exposed skin;
- Eliminate any standing water (e.g., tires, buckets, cans, bottles, barrels) whenever possible to reduce or eliminate areas where mosquitoes can lay eggs; and
- Accommodate or reassign workers who express a concern about the risks associated with mosquito bites and the Zika virus.
- In addition to following the same precautions recommended for general outdoor workers for protection against mosquito bites, employers of mosquito control workers are advised generally as follows:
- When workers are performing tasks related to mosquito control, such as entering areas with dense mosquito populations (ponds and other locations of standing water), instruct workers to wear additional protection (additional protective clothing, enhanced skin protection), and provide such protection;
- When workers are mixing, loading, applying, or performing other tasks involving wide-area (or area) insecticides, instruct workers to wear additional protection to prevent or reduce exposure to hazardous chemicals; and
- When workers are conducting mosquito control operations with insecticides wear respirators, which must be used in accordance with the respirator selection, medical clearance, fit-testing, and other requirements of OSHA’s Respiratory Protection standard.
- With regard to healthcare and laboratory workers, the Guidance reminds employers to follow consistent infection control and biosafety practices, and sets forth preventative guidelines:
- Follow standard infection control and biosafety practices;
- Have procedures in place to avoid direct contact with blood and other potentially infectious materials;
- Instruct workers to wear gloves, gowns, masks, and eye protection;
- Oversee workers to ensure they follow workplace standard operating procedures (e.g., workplace exposure control plans) and use the engineering controls and work practices available in the workplace to prevent exposure to blood or other potentially infectious materials; and
- Instruct and inform workers to not bend, recap, or remove contaminated needles or other contaminated sharps. Properly dispose of these items in closable, puncture-resistant, leak-proof, and labeled or color-coded containers.
- The Guidance addresses business travelers, the most common and generic group of employees, and advises employers with workers traveling to Zika affected areas as follows:
- Educate and inform workers to follow CDC guidance and warnings for travel to areas with active Zika transmission;3
- Employers should consider allowing flexibility in required travel to areas with active Zika transmission for workers who are concerned about Zika virus exposure;
- If requested by a female employee, employer may allow pregnant women not travel to areas with active Zika virus transmission;4 and
- Advise workers that even if they do not feel sick, travelers returning to the United States from an area with Zika should take steps to prevent mosquito bites for 3 weeks so they do not pass Zika to mosquitoes that could spread the virus to other people.
- FMLA, OSHA, and Title VII Issues and Concerns:
- The spread of the Zika virus implicates a number of federal laws, including the Family and Medical Leave Act (FMLA), the Occupational Safety and Health Act (OSHA), and Title VII.
- Under the 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. Leave taken by an employee to preemptively avoid potential exposure to the Zika virus would likely not be protected under the FMLA, though it may be determined on a case-by-case basis.
- Under 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. The dangerous condition must be one that would cause “a reasonable person, under the circumstances then confronting the employee, [to] conclude that there is a real danger of death or serious injury.”5 In addition, OSHA’s General Duty Clause requires employers to maintain a workplace that is “free from recognized hazards” that may cause serious injury or death.” An employer’s obligations under the General Duty Clause depend on, and change with, the circumstances.
- 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. In addition, employers should not discriminate against women, or prevent women from traveling on business trips to affected areas, based on gender and pregnancy concerns. If an employee requests postponement or modification of travel, such requests should be thoughtfully considered.
Privacy Issues and Unlawful Medical Inquiries:
- Employers must follow all medical privacy considerations related to any sick or ill employee.
- With regard to employers requiring medical examinations of employees who have traveled to an area with a Zika outbreak before they return to work, such a request would implicate the Americans with Disabilities Act (ADA). 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 standard is likely not met in most workplaces at this time.
Prudent employers with operations or business activities in Latin America, South America, or other affected areas should be proactive to prevent infections in the workplace and as a result of workplace conditions. Given the significant media attention surrounding the spread of the Zika virus and the practical reality that the virus may pose threats, employers should treat any request for leave due to the fear of exposure seriously and take action to education, counsel, and maintain flexibility with employees.
Potential responses to the Zika virus outbreak include educating the workforce. For example, information regarding methods for protecting against the virus – from what type of clothing to wear to the benefits of insect repellant. Employers should educate their employees on the methods of transmission of the Zika virus, explain that transmission risk, assure them at the situation is being monitored by public health agencies, and emphasize good mosquito prevention practices.
Zika infections are spreading, and workplaces are not immune. Proactive attention to the potential employment issues related to the Zika virus may prove productive in preventing an outbreak from a human resources perspective.
1 CDC Fact Sheet: Interim Guidance for Protecting Workers from Occupational Exposure to Zika Virus, http://www.cdc.gov/niosh/topics/outdoor/mosquito-borne/pdfs/osha-niosh_fs-3855_zika_virus_04-2016.pdf#page=1
2 This article will provide a brief overview of some highlights included in the Guidance; however, counsel and employers should fully consult the Guidance before advising employers about issues related to the Zika virus.
3 CDC Travels’ Health: Zika Travel Information, http://wwwnc.cdc.gov/travel/page/zika-travel-information
4 See, infra, potential issues related to Title VII compliance and best practices.
5 For additional information, see, www.osha.gov
Womble Carlyle articles are intended to provide general information about significant legal developments and should not be construed as legal advice regarding any specific facts and circumstances, nor should they be construed as advertisements for legal services.