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Aug. 15 — Zika has now spread to the U.S., so many lawyers are gearing up to help employers handle the practical and legal ramifications of the virus.
“I’m getting a lot of calls every day,” mainly from employers who have pregnant employees and employees who work outside, Lisa Berg, a shareholder in Stearns Weaver Miller Weissler Alhadeff & Sitterson P.A., told Bloomberg BNA Aug. 11. Berg’s law firm is in Miami, where the first domestic cases of Zika surfaced in the Wynwood neighborhood north of downtown in early August.
At least one law firm—Ogletree, Deakins, Nash, Smoak & Stewart—considers the legal issues sufficiently compelling that it formed a Zika rapid response team. The Ogletree team consists of lawyers from numerous practice groups in several cities who will counsel employers on their obligations under various statutes, including the Occupational Safety and Health Act, the Americans with Disabilities Act and the National Labor Relations Act.
Phillip Russell, an Ogletree shareholder in Tampa, Fla., told Bloomberg BNA Aug. 11 that the rapid response team is working on a list of best practices for their employer clients and already has developed “a toolbox talk” through which construction managers can inform their workers about potential on-site Zika hazards.
The Zika virus can cause serious birth defects. Zika outbreaks have been spreading through Mexico, Central and South America and parts of the Caribbean for several months. Mosquito bites are the most common source of infection, but the virus also can be spread in bodily fluids through sexual contact or laboratory exposure, according to the Centers for Disease Control and Prevention. Many people infected with Zika don't exhibit symptoms, and there is no vaccine or medicine for Zika.
Russell, whose practice focuses on the construction industry, said he is fielding questions about Zika from clients and trade groups. “The first thing is to assess the hazard,” he said, and to educate employees about it if the hazard can’t be eliminated. Construction workers in Florida work “outside in a swamp,” and if they are working “on a bridge next to standing water, that is a risk.”
Russell suggested construction managers remind their workers to look for mosquitoes and bug spray that contains DEET. They also should strictly enforce their “construction zone dress code” of long sleeves and long pants to reduce the risk of mosquito bites.
“You’re going to have different concerns and risks to abate” in each industry, Russell said. For example, the hospitality industry may be concerned with pool cleaners, who typically wear shorts, and outdoor bartenders who may not be able to wear bug spray while preparing drinks, Russell said.
Workers who contract the virus could find it difficult to obtain workers' compensation because “there would have to be proof that the mosquito bite occurred at work,” which likely would be “an interesting evidentiary discussion,” he said. However, the employer still may face consequences because “under the ADA, a Zika infection could be considered a disability that requires reasonable accommodation,” Russell said.
If employees complain on social media about their exposure to mosquitoes, the employer should refrain from taking action against them because their complaints could be considered protected concerted activity under the NLRA. However, “You can still discipline them for not showing up for work,” Russell said.
Berg, the Stearns Weaver lawyer in Miami, discussed the role of guidance issued by the Labor Department’s Occupational Safety and Health Administration. “I’m advising employers that it is not a standard or a regulation and creates no new legal obligations. Rather, it offers recommendations to employers to create a safe and healthful workplace,” Berg said.
OSHA’s guidance suggests workers use bug spray and wear long-sleeved shirts, long pants and hats with netting. It also recommends that employers eliminate standing water where mosquitoes can breed. “I have been advising our employers to educate their employees to take the precautions recommended in the guidance,” Berg said.
Despite the particular risks to pregnant women, Berg stressed that employers should give the information to all workers. Providing this information only to pregnant employees could expose an employer to a gender or pregnancy discrimination claim.
Lawyers in regions where Zika outbreaks haven’t occurred are advising their clients about issues related to their employees’ business trips. “It’s a good idea to say that if you’re pregnant or for any other medical reason you don’t want to go, let us know and we’ll accommodate you,” Jonathan Segal, a labor and employment law partner at Duane Morris LLP in Philadelphia, told Bloomberg BNA Aug. 10.
Some companies have gone further and announced they won’t require any of their employees to go to Zika-infected areas, he said. “If people don’t want to go and you send them, that could be bad employee relations. Sometimes employee relations comes in where the law doesn’t,” he said.
If a trip is critical to an employee's career success, Segal said an employer could consider postponing it or sending the employee on a comparable trip to a location that isn’t affected by Zika.
On the flip side, an employer can't ban a pregnant employee from traveling to an infected area. “I think you have a potential sex discrimination claim if you say no,” Segal said. Under United Automobile Workers v. Johnson Controls, 499 U.S. 187 (1991), “It’s up to the women to decide whether she’ll take the risk for herself and the fetus,” he said.
In such a situation, Segal suggests asking the employee to sign a statement acknowledging the employer informed her about the risks and the lack of adverse consequences if she declined to go.
Any employees, whether pregnant or not, who travel to Zika-infected areas should receive information about the virus from “a reputable independent source,” Segal said. He recommended that employers provide a web “link to public authorities” such as the CDC or the World Health Organization. An employer should clarify that it isn’t giving medical advice and caution the employee to consult his own doctor, preferably both before and after the trip, Segal said.
Employers also must be careful in dealing with employees when they return to work from a Zika-infected area, Berg said. The ADA prohibits an employer from forcing an employee to have a medical examination, and employers could risk liability under discrimination and medical privacy laws if they attempt to isolate or quarantine such employees. Berg said she advised one client, “Don’t quarantine an employee who’s coming back from the Olympics.” The Olympic Games are being held in Brazil, where the infection has been rampant.
Workers who insist on going and then get sick probably would have a valid workers’ compensation claim, Segal said. “The fact they knowingly assumed the risk wouldn’t make the workers' comp claim go away,” he said.
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