Zika Concerns Highlight Need for Employer Planning

Troutman Pepper
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A version of this article was originally published in the October 2016 issue of The HR Specialist. It is reprinted here with permission.

As temperatures in the Northeast cool, and the mosquito population disappears until spring, the Zika virus may no longer be on the minds of those who live and work in Pennsylvania. Given that cases of Zika continue to be reported in many parts of the world, including within the United States, however, Zika should remain on the radar of Pennsylvania employers. In addition, Zika concerns highlight the need for employers to be prepared for the issues surrounding employee illness, particularly as influenza season begins.

What Is Zika?

According to the Centers for Disease Control (CDC),1 Zika generally produces no symptoms or produces only mild symptoms in those affected. The symptoms can include fever, rash, joint pain, red eyes, muscle pain and headache. Zika is transmitted to people primarily through mosquito bites but also may be transmitted by sexual contact or by a pregnant woman to her fetus during pregnancy.2 Zika is a cause of severe birth defects, including microcephaly.

What, If Anything, Should Pennsylvania Employers Be Doing with Regard to Zika?

Given that there have been no known cases of local transmission (virus acquired from local mosquitos) of Zika in Pennsylvania,3 Pennsylvania employers should be concerned primarily with employee travel to Zika-infected areas and with future planning. The CDC is advising pregnant women to avoid traveling to Zika-infected locations and further is telling women who are trying to become pregnant to speak with their health care providers about their travel plans.4

If your business requires employee travel to Zika-infected areas, consider the following:

  • Some employers may decide that they will not require any of their employees to travel to Zika-infected areas. This is permissible. However, employers should not unilaterally restrict certain employees (such as those who are pregnant or may plan to become pregnant) from travel. The law does not permit an employer to implement an accommodation that is unwelcome by the employee, even if an employer is offering the accommodation with the safety of the employee or an unborn child in mind.
  • Employers should provide all employees who are asked to travel to Zika-infected areas on business with information about the virus from a reliable outside source, such as the CDC. Providing the information only to pregnant employees or to female employees of childbearing age could expose the employer to discrimination claims.
  • Employers should provide all employees who are asked to travel on business to a Zika-infected area with a way to request an accommodation or to discuss any travel-related concerns. Consider each situation on a case-by-case basis, keeping in mind that certain employees, such as pregnant employees or employees who are planning pregnancies in the near future, may be entitled to reasonable accommodations. These accommodations may include allowing the employee to refrain from or postpone travel.
  • The CDC’s travel notices provide guidance on precautions that travelers can take to reduce the risk of Zika infection. Employers should consider providing or reimbursing employees for the purchase of recommended protective measures, such as insect repellant or protective clothing.
  • Throughout this process, employers must be mindful of issues under the Americans with Disabilities Act (ADA) and other federal and state discrimination laws. Employers cannot ask employees if they are or plan to become pregnant, even when employees are asked to travel to a Zika-infected region.
  • While an employer may be tempted to obtain medical information or even require medical exams of employees who return from high-risk areas, these tests likely would violate the ADA. Employers may consider reimbursing the cost of Zika virus testing for employees who have returned from Zika-infected areas, but the employer is not entitled to know the results of the testing, and the employer cannot require the testing.

Planning for the Future

Employers should consult the Occupational Safety and Health Administration’s “Interim Guidance for Protecting Workers from Occupational Exposure to Zika”5 for steps to protect workers when temperatures warm in the spring. As concerns regarding Zika have highlighted, Pennsylvania employers should have a plan in place to deal with these types of issues. For example, some experts say that influenza is a much greater risk than Zika.6 Employers should prepare now for the impact that the flu is likely to have on the workforce this winter. For example, employers should:

  • Distribute materials explaining influenza fundamentals, including strategies to reduce the spread of the flu through good hygiene. Consider an onsite clinic to give employees easy access to flu shots. Make infection-control supplies, such as soap and hand sanitizers, available throughout the workplace.
  • Prepare and plan for operations with a reduced workforce. Review sick-leave policies to ensure that they will encourage ill employees to remain home rather than coming to work and infecting other employees and/or the public. Flexible work arrangements, including the use of telecommuting, flexible work hours and staggered shifts, are also helpful to minimize employee and customer exposure to the flu and to prevent spreading at the workplace.
  • Note that the ADA and/or the Family and Medical Leave Act may be implicated. While each situation must be considered on a case-by-case basis, employers should anticipate how they will handle what could be a large number of leave requests during a short period of time and the impact those employee absences may have on the company’s operations.

It is never too early to start planning for conditions that may affect your workforce. The time spent will be well worth the investment.

 

 

Endnotes

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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