Zika Virus Raises Safety Concerns in the Workplace

Zika Virus Is Causing A Major concern among employees legal rights to refuse work.

The World Health Organization, on February 1, 2016, issued a statement declaring Zika virus to be a “Public Health Emergency of International Concern.” Epidemiologists are predicting upwards of three millions to four millions individuals could be infected with the disease just in the Americas alone.  While no travel bans have been suggested, the WHO has emphasized caution.  Categorically the most pointed protective measures are geared toward the  control of mosquito populations. Prevention of mosquito bites in at-risk individuals, especially pregnant women, the elderly or those that are immune-system deficient. However, due to increased media coverage of a possible link between Zika-infected pregnant woman and a rare birth defect has begun to raise questions among employers that may be a risk.

What is The Zika Virus?

According to the World Health Organization, the Zika virus is an emerging mosquito-borne virus that was first identified in Uganda in 1947.   It was subsequently identified in humans in 1952 in Uganda and the United Republic of Tanzania. Outbreaks of Zika virus disease have been recorded in Africa, the Americas, Asia and the Pacific. The disease is caused by a virus transmitted by Aedes mosquito. Individuals that contract the disease typically report mild fever, skin rash and conjunctivitis (similar to pink eye). Fatigue, muscle weakness, joint pain and headache may accompany the infection. There is no treatment or vaccine for the virus. A typical infection lasts 2-7 days, at which time most symptoms remain mild. In past outbreaks, there were reports of neurological and auto-immune complications.

What is the Zika Virus Link to Birth Defects?

There have been recent outbreaks of the Zika Virus a few times over the past three years, first in French Polynesia in 2013 and in Brazil in 2015. In both cases, doctors and scientists noted an increased neurological complication. In the Brazil outbreak, local health authorities observed an increase in Zika virus infections in the general public as well as an increase in babies born with microcephaly in northeast Brazil.  Microcephaly is an abnormal smallness of the head, a congenital condition associated with incomplete brain development. Agencies investigating the Zika outbreaks are finding an increasing body of evidence about the link between Zika virus and microcephaly. However, more investigation is needed before the relationship between microcephaly in babies and the Zika virus is determined.  Other potential causes are also being investigated.

What Can Be Done to Prevent Zika Virus Outbreaks?

As with any mosquito-borne disesase (West Nile, Denge Fever, Malaria, etc), the key to prevention is controlling exposure to the insect itself. This usually consists of two strategies: 1) Reducing or eradicating breeding grounds for mosquitoes and 2) Reducing the possibility of contact with the infected mosquitos.

During outbreaks, health officials should monitor mosquito populations, performing diagnostic testing on trapped insects. Once a source infection is located, insecticides and larvicides can be used to thwart blossoming swarms of insects especially in areas of standing water or water containers. Removal of standing water, if necessary proves effective also.

Those that would normally be in an infected area, will want to use insect repellent, wear lighter colored clothing that covers the skin and reduce use of perfumes. In some areas, mosquito netting may be used to guard against bites.

Special attention and help should be given to those who may not be able to protect themselves adequately, such as young children, the sick or elderly.

Can An Employee Refuse to Come to Work To Avoid Exposure To the Zika Virus?

The spread of Zika virus brings a bevy of of federal laws into consideration. These include the Family and Medical Leave Act (FMLA), the Occupational Safety and Health Act (OSH Act), and the National Labor Relations Act (NLRA).

Under the FMLA, eligible employees incapacitated by a serious health condition or who are needed to care for covered family members incapacitated by a serious health condition, are entitled to up to 12 weeks of leave. However, any leave taken by an employee to avoid exposure to Zika virus would not be expressly protected under the FMLA.

The federal OSH Act protects employees to a certain degree. In an employee has no “reasonable alternative” and “refuses in good faith to expose himself to a dangerous condition,” then by law, the employer is prohibited from discriminating against the employee. There must be a determination that  “a reasonable person, under the circumstances then confronting the employee, [to] conclude that there is a real danger of death or serious injury.”  Perhaps more obviously, is OSHA’s General Duty Clause that states that employers “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” Employers will want to comply with the strategies mentioned above to eradicate any infestations and give proper cautions and guidance to employees. If travel is a part of an employee’s requirement, caution and common sense comes into play. In general, for instance, a non-pregnant worker that might travel to an outbreak area, would probably not fall under OSH Act protection, but a pregnant worker would probably be protected if she refused to travel.

Because of a variety of reasons, the National Labor Relations Act (NLRA) may give favorable guidance and protection to an employee when faced with the dilemma of possibly exposure and refusing to work. In order to be protected under the NLRA, an employee’s refusal to work (or strike) based on safety and health  concerns must be “concerted protected activity.” There is a fairly low threshold to satisfy the NLRA’s “concerted” requirement for safety and health concerns. The strike also must be “protected.” The NLRA is in stark contrast to the OSH Act on this point. It does not require an individual to have a “reasonable” belief that a situation is unsafe to refuse to work.  If, however,  the employee’s belief is reasonable, the NLRA places additional restrictions on the employer: An employer may not replace strikers who satisfy this “reasonable belief” element.

What’s the Bottom Line on the Zika Virus?

It’s important to understand that in order for the virus to infect, the victim must be bitten by an infected mosquito. Local health and safety officials in cities and even companies have a responsibility to monitor and perform basic eradication techniques. Individuals, also, have a responsibility for managing their personal exposure. When it comes to an employee’s refusal to work or travel in an area that is known to have a Zika virus outbreak, then employers will do well to take such refusals seriously. Employers should take an active role in educating employees on the disease and disclose any possible perceived dangers. Pregnant workers are especially in a strong position to refuse work in infested areas.