Three Ways the Zika Virus Can Impact Your Workplace
The CDC has confirmed that Zika can cause “microcephaly and other birth defects” in pregnant women infected with the virus. News stories have reported the spread of Zika to the South Pacific, Vietnam, and also to the US—where 346 cases of the Zika virus have been reported as of the time of this posting. The CDC has issued travel notices for people who plan on traveling to certain countries and regions where Zika has been found. As such, the CDC advises that “[w]omen who are pregnant should not travel to areas with Zika.”
Even with the CDC’s advisory, employers must be careful how they respond to employees who may be exposed to the Zika virus. Federal and state anti-discrimination laws still apply, in addition to other federal laws including the Occupational Safety and Health Act (OSH Act) and the Family and Medical Leave Act (FMLA).
Below, you will find answers to common questions we’ve received in response to how the Zika virus affects employers, pregnant employees, and legal compliance.
Q: Can employers prohibit pregnant employees from travelling to countries with reported Zika infections?
A: No. Employers cannot prohibit pregnant employees from travelling to countries with reported Zika infections. Employers will likely violate employment discrimination laws if they deliberately treat individuals differently based on pregnancy, childbirth, or related medical conditions. This is true even if employers are trying to “protect” individuals from challenging work environments and occupational hazards.
Employers should educate their employees about the risks of transmitting the Zika virus and preventative measures to inform travel decisions. Ultimately, however, the choice is for the employee to make.
Q: Can employers require employees to undergo a health screen before returning from travel that possibly exposed them to the Zika virus?
No, with limited exceptions, because it could violate laws that protect against national origin and disability discrimination (among many others). For example, under the Americans with Disabilities Act, an employer can only require a medical examination when it is job-related and consistent with business necessity. As the Zika virus is spread primarily through mosquito bites, birth, sexual contact and blood transfusion – activities nonexistent in most workplaces – it is unlikely an employer can affirmatively show the necessity required to mandate a health screen. National origin could come into play if an employee returns from visiting their country of origin with a travel warning.
Q: Can a pregnant employee refuse to travel to countries with reported Zika infections?
A: Generally, employees cannot refuse to work, unless they can show a real danger of serious injury or death. Technically, organizations like the CDC and WHO have not reported that serious injury or death is likely to occur if a pregnant woman is infected with the Zika virus. And while an employee’s union or employment contract may specify different standards for refusing work, an employer should tread carefully and approach pregnant employees and this public health situation with education, sensitivity and tact. The Occupational Safety and Health Administration (OSHA) and the National Institute for Occupational Safety and Health (NIOSH) released guidance for employers to handle the Zika virus in the workplace. OSHA and NIOSH suggest that employers be flexible with requests from employees to avoid exposure to the virus. Being flexible with requested leaves is one option an employer can employ to maintain a safe, compliant workplace.
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