The Zika virus (spread through particular mosquitos) is spreading throughout not only South America, but also here in the United States. At its current rate of spreading, it will become an epidemic shortly. There are at least 46 confirmed cases of the Zika virus in Illinois. Over the weekend, there were 3 new cases reported in Kane County. While new treatments may be on the horizon with virus blocking promise, those treatments have not been tested yet on humans. The Zika virus has been blamed for severe birth defects in newborn children. The news of the Zika virus raises the threat level for employers and employees. It also raises employment related issues that employers should be aware of.
Under the General Duty Clause of the Occupational Safety and Health Act (OSHA), an employer has a general duty to provide a safe working environment for its employees. Recently, OSHA issued guidance on protecting employees from exposure to the virus. Among the recommendations are:
- Inform employees about the Zika virus and ways they can protect themselves;
- Provide outdoor workers with insect repellant (paid for by the employer and approved by the EPA);
- Provide outdoor workers with protective clothing that covers their arms, legs, hands and face and strongly encourage them to wear it;
- Eliminate any standing water when possible so as to reduce mosquito breeding grounds; and
- Consider the accommodation or reassignment about employees who express a concern about the risks associated with mosquito bites and the Zika virus.
Aside from this guidance, there are several practical steps and employer should refrain from in order to protect itself against violations of the Americans with Disabilities Act, Title VII of the Civil Rights Act and OSHA.
- Do NOT require medical examinations of persons who have returned from an area with a Zika outbreak.
Under the Americans with Disabilities Act, it is unlawful for an employer to require a medical examination unless it is job related and consistent with business necessity. To date, medical evidence does not indicate that the Zika virus is transmitted through casual contact, such as a handshake or use of the same water cooler. Even if an employee has contracted the Zika virus, there is not sufficient reason to believe that employee would pose a significant health risk to other employees through the casual contacts likely to occur in an employment setting. Since there is no imminent threat to other employees, there is no business necessity to require a medical examination prior to returning to work.
- Do NOT impose quarantines on those that have traveled to Zika infested areas.
Since no public health officials have taken or recommended such drastic measures, imposing a quarantine could result in potential liability under the Americans with Disabilities Act, medical privacy laws, or even conceivably under Title VII of the Civil Rights Act which prohibits discrimination on the basis of national origin.
- Do NOT ban employees from traveling to Zika infested areas.
Pregnant employees, employees who are considering becoming pregnant or male employees with pregnant partners cannot be blanketly banned from certain work related activities. An employer may not impose his or her judgment or make decisions based upon their beliefs that such travel would cause an undue risk to the employee. An employer must make certain accommodations at the request of a pregnant employee. If a pregnant employee asks not to travel to a Zika infested zone, the employer should accommodate that request or risk running afoul of the various pregnancy related laws.
- Do NOT discipline employees who refuse to work in a Zika infested area.
If an employee presents an objectively reasonably based belief that working in an area known to have a Zika outbreak, which may subject them to an imminent threat of serious illness, do not force the employee to work in that area or discipline them for refusing to do so.
With over 30 years’ experience in advising employees and businesses on labor and employment issues and business concerns, such as our latest post on password sharing, let Boznos Law work with you to ensure you are ready to meet the challenges posed by the ever changing employment law landscape. Call Bill Boznos today at (630) 375-1958 or contact us through our website.