Quirky Question #288: Zika in the Workplace?
Question: We have been flooded with coverage of Zika, from the Rio Olympics to the recent travel restrictions in Miami As an employer, I want to be prepared and proactive to protect my employees, but I am also concerned about overreacting. I understand there are many reported cases of Zika, but only six cases where the individual actually became infected with the virus by a mosquito bite in the United States. I want my company to take prudent measures, but also not to panic and cause my employees to unnecessarily fear for their wellbeing. What can (and should) I do to protect my employees? Also, are there any state or federal employment law obligations implicated by a potential Zika outbreak that I should be aware of?
Answer: By Rebecca Bernhard and Steve Curry
Striking the right balance in your company’s reaction to Zika can be tricky, but there are some principles to follow, based on experience with past health issues. Zika is the latest in a line of serious medical conditions that have generated substantial media coverage and instilled fear among the general public. For example, we previously answered a similar question related to the Ebola outbreak. Like those other diseases, the World Health Organization has characterized Zika as an outbreak and emergency.
But every disease has unique aspects. Unlike Ebola and some other prior emergencies, the most serious health concerns with Zika are not for those first infected by the virus, but rather unborn children of infected parents. An adult who contracts Zika often has only mild symptoms (sometimes no symptoms at all). The bigger risks are birth defects to the unborn children of a woman who contracts Zika while pregnant. Zika is transmitted primarily by mosquitos, but can also be passed from human-to-human through contact with infected bodily fluids, including sexual contact.
Due to the extensive coverage of Zika and the serious health concerns for those who may have children, employers are wise to consider how they will address any problems associated with the Zika virus. In general, workers who are exposed to mosquitos while on the job or the blood or other bodily fluids of infected individuals may be at risk for acquiring Zika while working. The first step to consider would be informing employees of the risks of Zika, its symptoms, and simple preventative health measures that help to stop the spread of all diseases, including avoiding contact with bodily fluids of those that are ill, washing hands, and avoiding touching eyes, nose, or mouth. With few reports of Zika spread by mosquitos in the United States, employers can focus more on preventative measures to limit the potential spread through exposure to bodily fluids.
Employers should also consider some of the legal concerns the Zika threat might implicate. An employee’s own infection—to the extent it does not relate to the infection of their child—is not likely a “severe health condition” under the Family Medical Leave Act (FMLA), because the symptoms for an adult are usually mild. But that doesn’t mean you can ignore the FMLA altogether. An infection affecting a fetus (and time required to care for the child after birth) may qualify as a “severe health condition” under the FMLA. Thus, an employee who must care for a family member who is infected is entitled to leave under the FMLA. As a reminder, FMLA leave does not need be paid, and federal law does not prohibit employers from requiring that employees use paid leave contemporaneously with any FMLA leave.
We sometimes receive questions regarding whether an employee is entitled to refuse to come to work due to a concern about illness and, conversely, whether an employer can prohibit a sick, or suspected sick, employee from showing up for work (these questions are most common during flu season). Under the Occupational Safety and Health Act (“OSHA”), an employee may refuse to work due to safety concerns at the workplace, as long as those concerns are reasonable. At this point, concerns about contracting Zika are probably not reasonable concerns that would allow an employee to refuse to come to work, except for employees involved in very specific travel. Currently, the Centers for Disease Control and Prevention (CDC) recommends that all people who have traveled to areas where Zika is locally acquired monitor their symptoms and avoid unprotected sexual contact for a 28-day period. The CDC has identified only one area in the United States (the Wynwood neighborhood of Miami, Florida) where Zika is locally acquired. Outside of this area, an employee’s concerns of contracting Zika while on the job are relatively minimal, considering the easy prevention of unsafe exposure to bodily fluids. It may be advisable for employers to request that any employee who has traveled to a Zika-affected area work from home or take a paid leave of absence for the duration of the 7-day during which Zika can be passed from an infected person to another mosquito.
While employers can discourage travel to, and inquire whether employees have recently returned from, Zika-affected areas, employers cannot forbid travel to these areas. When discouraging travel or inquiring into travel history, employers need to be aware of federal and state discrimination laws. Any policy regarding Zika should be applied uniformly. For example, employers should ensure employees who have ties to South America are not unlawfully questioned with respect to their exposure or their family members’ exposure to the Zika virus.