The Zika Virus and the Workplace

Author: Melissa Gonzalez Boyce, XpertHR Legal Editor

The Zika virus is a real concern to employers as cases of locally transmitted infections have been reported in the US. Primarily spread through the bites of infected mosquitoes and through direct contact with infected bodily fluids, the Zika virus is a threat to essentially everyone, including employers that are faced with questions over whether and how to protect their employees. However, an employer's role in protecting the workplace is complicated due to various legal issues touching upon safety, employee health, job functions and business travel.

An employer should consider certain measures to better prepare its employees and their workplace.

1. Educate Employees

An employer should first educate itself on how to address the Zika virus in the workplace, including what it can and cannot do to handle work-related concerns. It is important for an employer to fully understand why the Zika virus is a concern for the workplace.

Besides educating itself, an employer should also educate its employees on the Zika virus to reduce fears and to teach them how to better protect themselves and others. For example, an employee should know what the Zika virus is and its common symptoms. By educating employees on the facts of the Zika virus, it will encourage cooperation between employees and management on measures to protect the workplace.

2. Reduce Risk of Exposure to the Zika Virus

As with most infectious diseases, there are certain precautionary measures an employer can take to reduce the risk of exposure to the Zika virus. For instance, since the Zika virus is primarily transmitted through the bites of infected mosquitoes, employers are urged by the Centers for Disease Control and Prevention (CDC) to provide and encourage the use of insect repellent and personal protective equipment (e.g., hats with mosquito netting) to those who work outside. Also, an employer should eliminate areas on its grounds where water can pool, as standing water often serves as mosquito breeding grounds. These measures, along with other preventive steps, can help an employer protect its employees and the workplace from the Zika virus.

An employer should consider workplace strategies relating to the Zika virus, along with other pandemics. For instance, an employer may consider implementing a policy that communicates to employees how it will address Zika and other infectious diseases. However, before implementing anything, an employer should make sure that such practices comply with federal laws, such as the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA) and the Occupational Safety and Health Act (OSH Act). For example, under the ADA, an employer may not require an employee to undergo a medical examination unless it is job-related and justified by business necessity. Also, an employer should make sure to comply with the FMLA if an employee is eligible for leave for Zika-related conditions.

4. Address Employee Concerns About Performing Job Functions

An employer should be prepared for employees who may be nervous and concerned about contracting the Zika virus. From an employee relations perspective, an employer should be understanding of the employee's concerns and evaluate every request or issue based on the employee's particular circumstances.

If employees refuse to work outside, for example, because of fears over infected mosquitoes, an employer may require that they perform their job duties unless they have an objectively reasonable belief that they face "imminent death or serious injury" - a standard required under the OSH Act. To allay such concerns, an employer should educate employees on preventive measures. However, under the National Labor Relations Act (NLRA), an employee's refusal to work based on concerns about safety or health (also known as a strike) is a protected concerted activity. Unlike the OSH Act, the NLRA does not require the employee to have a reasonable belief that the circumstances are unsafe in order to strike for safety or health concerns.

Since the Zika virus may cause severe birth defects (e.g., microcephaly), women who are pregnant or are trying to get pregnant and men whose partner is trying to get pregnant may have serious concerns about the risk of infection. An employer should consider requests for a reasonable accommodation, including a job transfer, job modification or time off, any of which may be a way to avoid traveling to a Zika-affected area. The employer and employee should have a good-faith conversation for determining whether a reasonable accommodation is appropriate or necessary. An employer should be aware that a pregnant employee also may have the right to a reasonable accommodation under state pregnancy accommodation laws.

6. Evaluate the Need for Business Travel to a Zika-Affected Area

An employer may find that an employee has reservations or simply refuses to go on a business trip to a Zika-affected area. In this case, an employer should evaluate every situation on a case-by-case basis and determine whether the trip is necessary. Legally, an employer may require the employee to go if the CDC has not issued a travel advisory for that area. However, an employer should consider being more understanding and reach an alternative solution with the employee, e.g., conduct business remotely or in a different location. On the other hand, an employer may not prohibit an employee, including a pregnant employee, from traveling to a location known to be affected by the Zika virus.