The Zika virus is the latest source of sleepless nights for public health officials, but it is also starting to take its emotional toll on U.S. employers. Reports of children born with microcephaly and an uptick in reported cases of Guillain-Barré syndrome, which can cause numbness, nerve damage, paralysis and sometimes death in affected patients, are raising fears for many companies with cross-border operations that employees traveling to areas where an outbreak is occurring may come back affected by the rapidly spreading Zika virus. In this climate where headlines may stoke disproportionate fears of a pandemic, employers must remember to disseminate factual information to employees and refrain from over-reacting.
This GT Alert focuses on the specific issues the current Zika outbreak presents for employers and certain suggested responses. Yet, it is important to point out three basic facts about the current outbreak to help frame this issue properly from an employment perspective. First, although it is suspected that Zika virus exposure is the cause of increased microcephaly and Guillain-Barré syndrome occurrences in Brazil and other affected areas, and indeed the full Zika virus genome has been detected inside the brain of at least one affected fetus thus far, the causal connection between the virus and these increases has not been scientifically demonstrated at this time. Second, although Zika virus exposure is overwhelmingly caused by the bite of a specific mosquito (and a second type is also thought to be a lesser source of transmission), a handful of cases have been reported where the virus has been transmitted by human to human interaction (through exchange of bodily fluid, including sexual intercourse, and blood transfusion). Third, the Zika virus is largely asymptomatic, meaning that perhaps as many as 80 percent of people who may carry the virus display none of the symptoms of the disease or are unaware of, or unaffected by, those symptoms. These symptoms, which include primarily rash, fever, joint pain and conjunctivitis, and occur between two and seven days after a bite, may be so mild that affected individuals are unaware that they have been infected.
With these three facts in mind, US employers with overseas operations can take certain steps to ensure that their employees traveling to outbreak areas are provided a primer on the virus and its symptoms. Since transmission of the virus occurs overwhelmingly through mosquito bites, employers should remind employees of the CDC-recommended precautions for travel in such areas. The CDC recommends that travelers wear long-sleeve shirts and pants, stay in places with air conditioning or that use window and door screens, use effective and EPA-approved insect repellents (and read labels closely to ensure most effective use, especially when combined with sunscreen and/or applied on babies or children) and sleep under a mosquito net if possible. In jurisdictions that require reimbursement for any work-related expenditure, employers should err on the side of allowing reimbursement for items suggested to avoid virus transmission, such as insect repellent.
Also, all employees, not just women who are pregnant or those who are contemplating pregnancy, should be given the option not to travel to outbreak areas. Indeed, some immunologists suggest that, as cases showing transmission via exchange of bodily fluids emerge, men could be at even greater risk for transmission of the Zika virus than women. There is clear legal guidance from the US Supreme Court that tells us that employees must make their own health-related decisions, and an employer may not unilaterally take those decisions for them. Instead, the employer can inform each traveling employee of the risks associated with traveling to Zika outbreak areas and give each employee the option not to go. Specifically, under federal employment law, an employer cannot unilaterally decide to remove a pregnant employee from a work assignment because it is particularly hazardous for that woman or her unborn child. The same would be true for a person whom the employer suspects is seeking to start a family/become pregnant, man or woman.
Because the CDC has reported that at least some cases seem to have been transmitted via bodily fluid exchange between humans, including sexual intercourse and blood transfusion, we suggest that employers provide traveling employees with a link to, or copy of, the CDC’s then-current guidelines on prevention of transmission, which now include the recently-issued Interim Guidelines for Prevention of Sexual Transmission of Zika Virus, addressing individuals who reside in or have traveled to an area of active Zika virus transmission and their partners.
At this time, it is extremely difficult to assess how much of a risk, if at all, the Zika virus represents in conjunction with inadvertent blood or bodily fluid transmission in normal workplace interactions (i.e., not involving places where intravenous procedures are common). Nevertheless, employers may wish to consider adopting a protocol for avoiding transmission of blood borne pathogens. Certain workplaces may already have such a protocol in place, as a matter of choice or as required by the nature of the workplace or applicable law.
Lastly, barring instructions to the contrary from appropriate agencies, employers should avoid certain requirements like quarantine or the testing of employees returning from Zika virus outbreak areas before allowing employees to return to the workplace. Given the lack of causality and limited likely risk of contagion in the normal workplace, it may be difficult to justify imposing such measures under existing law. As with many health emergencies, extensive education is the best method to raise awareness and minimize risk of transmission of the Zika virus.
Laurent Badoux is chair of the Phoenix Labor & Employment Practice for Greenberg Traurig.
