The Zika virus has been in the news and making headlines for several months now, as we recently have seen multiple athletes withdraw from the 2016 Olympics in Rio.
For just the fourth time in history, the World Health Organization (WHO) has declareda “public health emergency of international concern.” The Zika virus joins the list of the H1N1 pandemic (2009), the spread of polio (2014) and the Ebola outbreak (2014) in achieving this designation.
As of the first of August of this year, there were a reported 11 cases in Kentucky alone according to the CDC. They also confirmed more than 2,000 cases of Zika virus in 46 U.S. states and 3 U.S. territories. Just fewer than 50 percent of cases in the U.S. were acquired through travel while the rest were transmitted by mosquitos.
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, while only one in five people infected with Zika will develop symptoms.
Currently there is not a vaccine to prevent the Zika virus infection, and there is no specific treatment for people who become infected. 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.
With such a global health alarm this is now raising many issues and posing multiple questions for employers and employees as to the appropriate workplace response.
An employee who contracts the disease while on assignment outside of the United States very well may trigger a Workers’ Compensation claim. As a result many employers have been encouraging their employees to suspend non-essential travel to known affected areas. If such travel is deemed necessary, employers should be informing their employees of the risks and preventative measures.
From an employment practice liability prospective, it’s important for employers to know that they should never forbid pregnant employees — or women of child-bearing age — from traveling to countries where the virus is a concern. The Supreme Court has previously found that such an exclusion constitutes gender discrimination (Automobile Workers v. Johnson Controls, Inc.)
The U.S. Supreme Court ruled that Title VII of the Civil Rights Act of 1964 prohibits companies from excluding or firing women from jobs that might pose reproductive health hazards. Excluding men with pregnant partners or who plan to become fathers from travel assignments is equally discriminatory.
Instead employers can and should instruct employees about the risks and can encourage them to make a decision not to travel to an affected country, but they cannot prohibit only pregnant women from traveling there. To be legal, a travel prohibition would have to be equally applied to all employees regardless of their sex or relationship status.
Another question that keeps surfacing is — Can an employee refuse to work where the Zika virus is present?
Each circumstance is different, so this can be a difficult question to answer. In general, according to the OSHA standard employees cannot refuse work unless there is an objectively reasonable belief that there is a risk of imminent death or serious injury. Therefore refusing to work without such an objective belief may result in disciplinary action by the employer.
It is a given that Zika is spread by mosquito bites, which can be prevented with appropriate precautions, so this standard is unlikely to apply. Except, possibly, for a pregnant employee, the Zika virus threat likely does not rise to this level. Nonetheless, because of the recent publicity and concern that the virus has received, I would recommend that employers may want to consider “accommodating” employees’ fears.
Employers should instead share information published by the CDC, the World Health Organization, and the Occupational Safety and Health Administration (OSHA) to help calm their employee’s fears.
Additionally, everybody’s health may vary, employers should steer employees who have questions to consult with their doctors as to their own individual medical risks.
Employers actually have a duty to notify all employees about the Zika virus and to provide information about who could be at risk. A company that doesn’t share this information could be exposed to some form of liability.
Given the fact that the Zika virus has landed on U.S. shores, this threat has escalated to a new level for employees these last few months. Outdoor workers are at the greatest risk of exposure to Zika virus and employers.
Some workers may require additional protection, including those working with insecticides in areas of active Zika transmission to control mosquitoes and healthcare workers who may be exposed to contaminated blood or other potentially infectious materials from people infected with Zika virus.
Although there are no reports of transmission of Zika virus from infected patients to health care personnel or other patients, minimizing exposure to body fluids is important to reduce the possibility of such transmission. CDC has previously recommended Standard Precautions in all health care settings to protect both health care personnel and patients from infection with Zika virus as well as from blood-borne pathogens (e.g., human immunodeficiency virus [HIV] and hepatitis C virus [HCV]).
Employers should never require a medical evaluation for any of their employees that have traveled to an area with a Zika outbreak, or impose quarantine on such employees. The Americans with Disabilities Act (ADA) can provide justification for an evaluation if the employer has a reasonable belief that a worker will pose a direct threat to others because of a medical condition. But because Zika is not transmitted from person to person in casual contact, the ADA standard is probably not met in most workplaces.
In addition to informing your employers of their risks to the Zika virus through mosquito bites you and how to protect themselves, employers should follow the following suggestions:
Outdoor workers
* Provide insect repellents containing EPA-registered active ingredients and encourage their use.
* Provide workers with, and encourage them to wear, clothing that covers their hands, arms, legs, and other exposed skin. Consider providing workers with hats with mosquito netting to protect the face and neck.
* In warm weather, encourage workers to wear lightweight, loose-fitting clothing that covers exposed skin. This type of clothing protects workers against the sun’s harmful rays and provides a barrier to mosquitoes. Always provide workers with adequate water, rest, and shade, and monitor workers for signs and symptoms of heat illness.
* Get rid of sources of standing water (e.g., tires, buckets, cans, bottles, barrels) whenever possible to reduce or eliminate areas where mosquitoes can lay eggs. Train workers about the importance of eliminating standing water at the worksite.
* If requested by a worker, consider reassigning workers who indicate they are or may become pregnant, or male workers who have a sexual partner who is or may become pregnant, to indoor tasks to reduce their risk of mosquito bites.
Business Travelers
* Follow CDC guidance for travel to areas with active Zika transmission
* Employers should consider allowing flexibility in required travel to areas with active Zika transmission for workers who are concerned about Zika virus exposure.
* CDC recommends that pregnant women not travel to areas with active Zika virus transmission.
* Consider delaying travel to areas with active Zika virus transmission, especially for workers who are or may become pregnant or whose sexual partners may become pregnant.
* 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.
Healthcare and laboratory workers
* Employers and workers in healthcare settings and laboratories should follow standard infection control and biosafety practices (including universal precautions) as appropriate, to prevent or minimize the risk of Zika virus transmission.
* Standard precautions include, but are not limited to, hand hygiene and the use of PPE to avoid direct contact with blood and other potentially infectious materials, including laboratory specimens/samples. PPE may include gloves, gowns, masks, and eye protection.
* Hand hygiene consists of washing with soap and water or using alcohol-based hand rubs containing at least 60 percent alcohol. Soap and water are best for hands that are visibly soiled. Perform hand hygiene before and after any contact with a patient, after any contact with potentially infectious material, and before putting on and upon removing PPE, including gloves.
* Laboratories should ensure that their facilities and practices meet the appropriate Biosafety Level (BSL) for the type of work being conducted (including the specific biologic agents – in this case, Zika virus) in the laboratory.
* Employers should ensure that workers: 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.
* Employers should ensure workers do 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. Workers should use sharps with engineered sharps injury protection (SESIP) to avoid sharps-related injuries.
Be Safe My Friends
Keven Moore works in risk management services. He has a bachelor’s degree from University of Kentucky, a master’s from Eastern Kentucky University and 25-plus years of experience in the safety and insurance profession. He lives in Lexington with his family and works out of both the Lexington and Northern Kentucky offices. Keven can be reached at kmoore@roeding.com.