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Zika Virus Concerns in the Workplace

By Patricia Anderson Pryor and Francis P. Alvarez
  • February 10, 2016

A global health alarm on the outbreak of a disease or virus raises issues for employers and employees as to the appropriate workplace responses. In recent years, Avian flu, swine flu (H1N1), and Ebola drew workplace concerns. Now, the mosquito-borne Zika virus has the Centers for Disease Control and Prevention (CDC) and the World Health Organization (WHO) declaring public health emergencies and putting employers’ attention on how to respond.

Some health outbreaks would raise quarantine issues and medical testing questions due to the risk that infected individuals can infect others in the workplace. The Zika virus does not have the same communicable risk. Therefore, employers do not face the same concerns this time.

According to the CDC, the Zika virus is spread primarily through mosquitos and, possibly, through sexual contact. Common symptoms, which include fever, rash, joint pain, or conjunctivitis (red eyes), are mild and can last a week. Hospitalization for the illness is uncommon. Outbreaks are occurring in many countries, and the CDC is tracking incidents of the virus in the United States.

However, the most significant concern from the Zika virus is the risk to pregnant women. The virus is believed to affect the fetus of an infected pregnant woman resulting in the potential for microcephaly, a rare birth defect.

This poses a question for employers: Should a pregnant employee be prevented from going into an environment where the Zika virus is widespread?

In general, an employer cannot take a “paternalistic” approach by dictating to a pregnant employee what is or is not safe for her. The Equal Employment Opportunity Commission emphasized in its Enforcement Guidance on Pregnancy Discrimination, “An employer’s concern about risks to the employee or her fetus will rarely, if ever, justify sex-specific job restrictions for a woman with childbearing capacity.” Instead, employers are encouraged to ensure all employees are aware of the risks and are provided with the necessary knowledge to protect themselves.

According to the CDC, the best way to prevent the disease is to protect oneself from the mosquito bites by:

  • Wearing long-sleeved shirts and long pants;
  • Staying in places where there is air-conditioning and/or window screens;
  • Using insect repellant; and
  • Treating clothes and gear with permethrin, a repellant and insecticide.

Another question for employers: Can an employee refuse to work where the Zika virus is present?

Each circumstance is different. In general, employees who are not disabled and are not caring for their own or a family member’s serious health condition cannot refuse work unless there is an objectively reasonable belief that there is a risk of imminent death or serious injury. Except, possibly, for a pregnant employee, the Zika virus threat likely does not rise to this level. Nevertheless, because of the public attention and concern this virus has received, employers may consider “accommodating” employees’ subjective fears. Employers can share information published by the CDC, the World Health Organization, and the Occupational Safety and Health Administration (OSHA) to help allay fears. In addition, employers should direct employees who have questions to consult with their doctors as to their own individual medical risks.

As is often the case, media reports may not match the information provided by the CDC, WHO, and OSHA. As more research is conducted on the Zika virus, employers should continue to monitor the information and recommendations from these organizations for updated guidance. Jackson Lewis attorneys are available to assist you with these and other workplace issues.

©2016 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at www.jacksonlewis.com.

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