Published in the Union Leader (2/29/2016)
Q: My company has a group of employees ready to embark on a project in South America, and we are concerned about their being exposed to the Zika virus. As a company, what should we do?
A: The Zika Virus, an illness transmitted primarily by mosquitoes and also, less frequently, through blood transfusions and sexual contact has certainly been in the news recently. The U.S. Centers for Disease Control (CDC) has issued travel warnings alerting people to the risk of travel to more than two dozen countries in the Caribbean and South and Central America. More than a dozen states have reported cases of the virus, and cases are now being reported in the Czech Republic and Japan. Due to the possibility of risk of birth defects if pregnant women are infected, the warnings are certainly of concern to travelers and employers who do business internationally. As with any medical issue, great care must be taken to protect the privacy and rights of employees and prospective employees. Laws of particular import include the following:
- Americans with Disabilities Act (ADA): The ADA prohibits an employer from requiring medical examinations of current employees absent a reasonable belief that the employee has a medical condition or disability which poses a direct threat to the employee’s own safety or the safety of others in the workplace. Due to the lack of objective evidence that the virus can be spread through casual contact, there seems to be no basis to require medical examinations.
- Occupational Health and Safety Act (OSHA): OSHA does permit employees to refuse to perform job tasks when they have a reasonable basis to believe that there is a threat of imminent death or serious injury. The CDC has indicated that the spread of Zika can be eliminated with appropriate precautions, even in countries affected by the virus except when the employee is pregnant. Employees may therefore not be reasonable in asking not to be sent to affected countries. A pregnant employee’s request of this nature, however, may be deemed a reasonable accommodation.
- Title VII of the Civil Rights Act of 1964 (Title VII): Although an employer may want to agree to a pregnant employee’s request to be excused from travel to affected nations, it would not be a good idea for an employer to ban pregnant employees, spouses of pregnant employees or individuals planning to become pregnant from overseas travel. The employer’s best course of action is to educate employees about the risks and then let them make their own healthcare decisions.
The best course of action for employers, especially those who have employees traveling to the Caribbean or South or Central America, is to provide education about risks and precautions to take and to refer employees to the CDC website for information. Such employers should also reinforce sick leave and FMLA policies and make sure supervisors are knowledgeable about illnesses and require sick employees to take time off from work. Finally, employers should consider allowing employees, especially those expecting children or planning to get pregnant, to opt-out of travel, at least until more is known about the virus, its genesis and its long term affects.
Charla Stevens can be reached at [email protected].
Know the Law is a bi-weekly column sponsored by McLane Middleton, Professional Association. We invite your questions of business law. Questions and ideas for future columns should be addressed to: McLane Middleton, 900 Elm Street, Manchester, NH 03101 or emailed to [email protected]. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.