The Zika Virus - A Q&A for Employers
Q. Should an employer forbid employees from traveling to areas where a travel alert has been issued for Zika? What about pregnant employees?
A. Employers cannot prohibit any employee's "lawful conduct" which includes his/her personal travel. Excluding pregnant women from business travel or any work-related assignment is gender discrimination. Prohibiting men/women with pregnant partners from travel is equally discriminatory.
Instead of limiting employee business travel, employers should give workers a choice regarding travel to areas at-risk for Zika, as identified by the CDC (Centers for Disease Control and Prevention). All employees should be educated on the virus including modes of transmission, symptoms and preventative measures against infection.
Q. Should an employer require a medical exam upon the return of an employee from an area where the Zika virus has been found?
A. Generally, no. According to the Americans with Disabilities Act (ADA), if an employee poses a "direct threat" based upon a medical condition, an employer can require a medical exam, if it is job related and there is a business necessity. To-date, the CDC has stated that the Zika virus is not transmitted by casual contact between individuals, and therefore the ADA "direct threat" standard would likely not be met.
Q. Should an employer prohibit an employee from coming to work if he/she has just returned from an area where the Zika virus has been found?
A. No, not at this time. An employer who deviates from public health guidance risks legal claims based upon privacy laws, wage and hour claims, and discrimination claims based upon race and national origin. To date, no public health officials, including the CDC, have imposed quarantines on individuals returning from affected areas.
Q. What can an employer do if an employee refuses to travel to an area with a travel alert issued by the CDC for Zika?
A. Before taking any employment action, employers should carefully review each situation, ideally, with someone experienced in employment law.
An employee can refuse to work if there is a reasonable, objective belief of "imminent death or serious injury." There are standards set by the Occupational Safety and Health Administration (OSHA) in this regard. In the case of Zika, the virus is transmitted by mosquito bites, which can be prevented with appropriate safeguards, so the "imminent death or injury" standard is unlikely to be satisfied. However, if an employee, or his or her spouse/partner is pregnant, the standard may be reached.
Employers also should keep in mind that pregnancy laws may require special accommodation, which may include granting a pregnant employee's request to refrain from traveling to an area where Zika is a concern.
Q. What about co-workers who are nervous because an employee visited an area where the Zika virus has been found?
A. Stay up-to-date on CDC-published guidance and proactively share this information with all employees. Visit, www.cdc.gov/zika for more questions and answers.