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IAML Alert: Zika Virus - What Employers Should Understand

The Zika virus is receiving significant press coverage, including reports that it may cause birth defects if pregnant women are exposed.  Employers may wonder if they have obligations to protect or accommodate employees under state and federal law, including the Occupational Safety and Health (“OSH”) Act and the Americans with Disabilities Act (“ADA”).  In the IAML Alert below, Gavin Appleby of Littler Mendelson discusses some frequently asked questions and guidance for employers regarding the virus. 

Mike Jackson:  “Hi everybody.  This is Mike Jackson.  Welcome to IAML’s timely alert the Zika Virus- Frequently Asked Questions for Employers.  We are joined today by Gavin Appleby from Littler Mendelson.  Gavin has been an instructor with the Institute for Applied Management & Law for over 20 years and he teaches the Certificate in Employee Relations Law course with us as well as the Certificate in Investigations course.

“Gavin, thanks so much for joining us.  I am going to hand this over to you.”

Gavin Appleby:  “Happy to do it Mike and thanks for the introduction.  Greeting everybody.  The hottest item of the day is the new Zika virus issue.  For what’s it worth, by the way, the Zika virus is not new.  It has actually been around since the ‘40s, but it’s mostly been in Asia and Africa and it’s now moved into parts of South America and the Caribbean. And, the real issue is that it’s become a lot more known than it was and seems to be a lot more risk to people travelling from the U.S. to those countries.  It’s either 12 or 14 countries that are banned.  If you need to information specifically… I shouldn’t say banned.  Sorry, that are affected and have been sent out as a warning by the CDC.  If you need some information about this, by the way, that’s not on the PowerPoint, go to the CDC’s website.  It’s a very good place to get other data on this and CDC does a really great job of updating that data.

“But, with all that in mind, I would like to at least give you what’s there, see if I can talk you through two important pieces, what it is and why are people acting so strongly and two, what’s the employer context of that?  Good news on this whole thing, by the way, is this is definitely not Ebola.  We are not in the same real risk situations that we were with that.  That required a lot of effort by employers to figure out who should and who shouldn’t travel and what to do with them when they came back to countries where there were issues.  This is nowhere near in that category.  It’s not lack of seriousness here, there’s definitely some reason for concern, but let me talk you through that.

“In the PowerPoint that you have, we have laid it down question by question so let me just start with the question we get the most often, how bad is this?  What are the symptoms?  Good news in that sense, Ebola was potentially deathly as we all know, this one’s not.  This one is basically like getting the flu, but probably even milder.  It is a virus that does create a fever.  It does create rash, some joint pain and oddly enough, conjunctivitis or pinkeye.  But, the real risk and why it’s such a big deal is the potential of birth defect issues that this particular virus carries for pregnant females and that’s the real concern we’ve got.  Otherwise, this is not something that’s going to put people in the hospital.  It’s not something that’s going to put people through great pain, but it is something to worry about and obviously, like I said, it is the hot item of the day.

“The real interesting question is how is it transmitted?  You get it through a mosquito bite and the bottom line is there is only a certain kind of mosquito, but good luck trying to figure out which mosquito’s which.  At the end of the day, if you are bitten and that mosquito has got the virus in it, you may well get the virus.  It doesn’t get transmitted from contact from one person to another person with some real rare exceptions in mother and newborn situations.  The other issue is really and the interesting one is that we are just finding out actually that it apparently that it can move from person to person through blood or bloody fluids contact and sexual activity.  I think there are now two reported instances of sexual activity situations and the transmission through that.  You can’t get it from touching objects, you can’t get it from touching surfaces.  The most common way to get it is a mosquito has it, bites somebody, gives that person the virus, another mosquito then bites that person and ultimately comes over and bites you.  You may get the virus.  That’s why there is so much discussion out there on mosquito repellant, mosquito protection particularly in the countries in question. 

“There is no simple test for it.  It’s a very complicated analysis.  It’s not one of those things where you can grab a litmus paper and know what you’ve got, but like I said, most people are not even aware that they have it and only really about 1 out of every 5 people gets it. 

“So, moving over to the next page, how long does the virus last?  Question number four here.  Usually a week, sometimes longer, but like I said there are some people who don’t even realize that they have it.  It’s just sort of like not feeling well.  Others get a little more of an issue going so there is that concern sitting out there, but for most people, like I said, isn’t that big a deal.  The question is, if you are going to those countries you need to be a little bit cognizant of what you’re doing.  There’s going to be, quite frankly, it’s going to take over aspects of the United States.  It’s going to be more prevalent, but the great thing is that right now we are not in mosquito season in the U.S., so maybe we will get a little lucky, but lots of speculation as to what could occur in a worst case scenario.  But again, worst case scenario is not Ebola.  This is not that level of concern. 

“Is there a preventative vaccination?  Unfortunately, no, not at this time.  That’s why we are speaking so much on issues of preventing mosquito bites.

“Question number six.  So what’s the big deal?  It’s just like I said, the real big concern is pregnancy and the real concern is birth defects.  It’s been a really big issue in Brazil and there are a number of specific birth defects, the most significant of which is having a child with a smaller head than normal with a smaller brain than normal.  It’s a specific type of birth defect that is related to this virus.  So, the people with real concerns are women who are pregnant, women who may be pregnant.  One of the biggest potential issues for women is not knowing they are pregnant yet and that they may be someplace where they do pick up this virus. 

“Question number seven.  Travel is not prohibited at this time.  It is simply a warning to take steps to avoid mosquito bites.  Like I said, go to the CDC’s website if you want more data on that.  I have had a couple of employers already ask, can we refuse to let employees travel to those countries even if it’s for vacation? Generally speaking, I would say don’t go there at this point.  When I say don’t go there, don’t go to the point of telling people not to travel to those countries. One, that is not really the employer’s issue and two, this isn’t so crazy like the Ebola was that you will have problems when that employee comes back.  It really shouldn’t work that way very often, so I would not be trying to dictate people’s personal lives at this point.  If the virus somehow gets worse that’s a concern.  I also would be in the position, we will talk more about this in a minute, of letting people know about this; maybe some education is a good thing, but again, that is mostly going to be directed at the end of the day at the employees who are pregnant females. 

“Question number nine on the next page of the PowerPoint.  Can an employer require a medical examination for an employee who has traveled to an area with a Zika outbreak before they return to work?  And the answer is a very complicated one, but the frank answer is probably not in most cases.  The ADA has a lot of limitations on when you can do a fitness-for-duty or a medical exam and those limitations are not going to be met in this particular instance asking something more significant.  Again, Ebola was one where we were willing to take that risk under the ADA, but I think if you made someone go through the medical exam because they are coming back from Brazil, I think that is a loser relative to the current status of the law. 

“Number ten, can you impose a quarantine?  You don’t need to.  That isn’t how this gets transmitted.  Hopefully your employees aren’t, I hate to say this it sounds crude, but hopefully no one’s having sex at work.  Hopefully no one is actually exchanging blood at work and those two things aside, hopefully this isn’t mosquito season.  You’re not having that problem.  So, the quarantine doesn’t make any sense in this particular situation so I would not be worried about those issues. 

Now are the people that are really worried about this, the American population does a really good job of semi panic and there’s a little bit of that going on right now.  If you are having people travel for work purposes and I’m now on question eleven, what should employers do with co-workers who are nervous to travel.  You should educate your employees and this PowerPoint is a really nice way to do that.  I think it explains the issues pretty effectively and from that standpoint, transmission risk is low, that agencies are monitoring the issues.  I would certainly talk about good mosquito prevention practices, but at the end of the day I think there are ways to ensure that people feel more comfortable.  You do have some duties to keep people safe but I don’t think you’re violating OSHA by having people travel to the countries in question.

“Number twelve.  Does OSHA or any state plans require employers to have a Zika policy and the answer to that is no.  This is all part of the OSHA blood borne pathogens rule.  You are probably already in compliance with that rule.  If you need to study up on that there is a lot of information on that on the OSHA site.  So the answer is at this point that you do not need to create something that’s different from what you already have.

“Thirteen.  This is the hardest question to me.  Should employers refuse to let pregnant employees travel to the affected countries?  Very complicated legally, what I can tell you is that you’re entitled to inform employees about the risk for pregnant females, but if you go farther one, I would never ask someone if they’re pregnant and secondly is, you can’t really legally make a decision about their safety even if you know that they are pregnant.  There’s a case that was decided a number of years ago by the Supreme Court that didn’t involve this kind of virus.  It involved a woman who was pregnant and she wanted to work among batteries where there was lead and a number of other potential issues that could affect pregnancy.  And that case, called the Johnson Controls case went to the Supreme Court and the Supreme Court basically said employers you can’t make that decision for your employees.  That’s their decision.  If they are qualified for the job and they want to do that job even if there is a risk to that job, they are entitled to do it.  And, that case is still good law.  Nothing has changed about that so the idea that you could tell someone “I’m not letting you travel to Brazil because you’re pregnant” you are going to get more risk out of that legally than you will out of any situation involving the Zika situation.  Again, education is ok, but try not to go farther than that.

“And then lastly, may an employee refuse to perform his or her job because of travel or because of concerns about Zika and the answer is they can’t really.  There is an OSHA standard; I’ve got it set forth is number fourteen here.  The standard is an employee is allowed to refuse to work, but only where there is an objectively reasonable belief that there is a chance of imminent death or serious injury.  We don’t have that here.  That said, if a pregnant employee is supposed to travel for you and realizes that the travel is to Honduras (Honduras is one of the countries in question) and they push back and say, “I’d rather not make that trip,” I think you need to evaluate your risk on that.  I am of the opinion that sometimes discretion is the better part of valor and there are some requests like that, but I think they are not worth going down the path and if you want to work with the person, that’s one thing.  We live in a really electronic world, there be ways to hook that person up with meetings with a variety of tools from Skype to more sophisticated tools.  Think about your alternatives before you get into a big match about that one. 

“But, that’s about it for now.  Hopefully that was helpful and like I said, the CDC site is good, the OSHA site is good, the World Health Organization (WHO) is also a very good site to go to.  Hopefully this PowerPoint and this presentation will give you some insights.  Thank you very much for your time.”

http://www.cdc.gov/zika/pregnancy/index.html
http://www.who.int/emergencies/zika-virus/situation-report/en/
https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS...

Mike Jackson:  “Thanks Gavin.  That was a lot of great information and thank you everyone for joining us today.  If any of you have any more questions on any employment law matters, you can contact IAML at iaml.com.”

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