In recent months, news outlets from around the country have reported on the impending Zika virus outbreak expected to impact the United States this summer. The threat of a global Zika epidemic has even caused some to call for the cancelling of this year’s Olympics in Rio de Janeiro, Brazil. The specter of plague has led to highly publicized debates within the federal government, while the legislature attempts to determine how much emergency funding will be required to quell a potential outbreak on a larger scale. With no vaccine to prevent a Zika infection, companies that make bug repellent are running factories near capacity as they anticipate surging demand. The U.S. Environmental Protection Agency is also expediting the approval process for alternate pesticides. In light of the significant trepidation caused by the potential Zika outbreak, many employers may be faced with situations where employees refuse to work (or travel for work) in areas affected by Zika out of fear of contracting the virus.
The spread of Zika has increased rapidly in U.S. territories such as the commonwealth of Puerto Rico, where more than 1,400 confirmed cases have been recorded according to the Center for Disease Control and Prevention (CDC). Presently, the Zika virus is spreading rapidly throughout many parts of South America and the Caribbean islands. U.S. companies with operations, or do business in, geographic areas where the Zika virus is spreading can expect many of their employees to express significant concern for their personal safety and health. Female employees expecting to become pregnant or currently pregnant, as well as male employees engaging in sexual conduct, may be particularly concerned about potentially contracting the Zika virus. Under the Occupational Safety and Health Act (OSHA), employers must furnish a place of employment that is free from recognized hazards that cause or are likely to cause death or serious physical harm to employees.
According to the World Health Organization (WHO), the Zika virus was first identified in captive monkeys in Uganda in 1947. In 1952, the first human cases were detected in Uganda and the United Republic of Tanzania. Prior to 2015, Zika virus outbreaks occurred in areas of Africa, Southeast Asia, and the Pacific islands. The first reported Zika virus infections in Brazil were confirmed in May 2015. The Zika virus spreads to people primarily through the bite of an infected mosquito; however, people can also get Zika through sex and it can be spread from a pregnant woman to her fetus. The rise in the spread of the Zika virus in the Americas has been accompanied by a rise in cases of microcephaly and Guillain-Barré syndrome. Microcephaly is a birth defect in which a baby’s head is smaller than expected when compared to babies of the same sex and age. Guillain-Barré syndrome is a condition in which the immune system attacks the nerve cells causing ascending paralysis. Today, local mosquito-borne transmission of the Zika virus has been reported in areas including Puerto Rico, the U.S. Virgin Islands, and American Samoa. The CDC reported that the United States has had 756 confirmed cases of Zika virus infections since Jan. 1, 2015, where the vast majority of infections were acquired while traveling outside of the country.
In light of the serious health threat posed by the Zika outbreak, U.S. employers should be mindful of their obligations under OSHA, which affords employees many rights to ensure their safety and ability to work in an environment free from recognized hazards.
One important one to note is that employees have a right to get training from their employer on a variety of health and safety hazards, as well as the standards that their employer must follow. For example, under the blood-borne pathogens standard, employees should not come in contact with any blood or bodily fluids that can cause various diseases, such as HIV, Hepatitis B or Zika. Accordingly, OSHA requires employers to pay for personal protective equipment to be furnished to employees to reduce their exposure to hazards. Personal protective equipment should be selected based on the hazards to which employees are exposed. In the context of Zika exposure, personal protective equipment may include insect repellents, protective netting and other items that repel disease-carrying mosquitoes. If personal protective equipment is to be used, the employer should implement a personal protective equipment program. That program should address the extent of the hazard(s); the selection, maintenance, and use of personal protective equipment; the training of employees; and the monitoring of the program to ensure its ongoing effectiveness. Employees also have the right to refuse to do a job if they believe in good faith that they are exposed to an imminent danger. In the context of a potential Zika exposure, a pregnant employee may fear that she will be in imminent danger if she is required to travel to Brazil for work. In that circumstance, the pregnant employee may have a good faith basis to refuse to travel for work; however, the employee’s refusal must be based on an objectively reasonable belief that there is imminent death or serious injury. An employee’s refusal to work without such an objective belief may result in disciplinary action by the employer. Because the Zika virus is spread by mosquitoes, contraction of the virus can likely be prevented with appropriate precautions (such as protective clothing, insect repellant, etc.). It may likely be difficult for employees to substantiate a good faith belief that the Zika virus will cause imminent death or serious injury, assuming an employer has taken appropriate steps to prevent contraction. Ultimately, the conditions necessary to justify a work refusal are very stringent under OSHA; therefore, an employee’s refusal to work must be an action taken as a last resort.
Finally, employees have a right to seek a safe and healthy work environment without fear of retaliation. Section 11(c) of OSHA dictates that an employer shall not punish or discriminate against employees for complaining to the employer, union or any other government agency about safety and health hazards. OSHA also prohibits an employer from discharging or in any manner retaliating against employees for exercising their rights under the law. Discrimination can include: firing or laying off; demoting; denying overtime or promotion; disciplining; reducing pay or hours, and other actions. OSHA also incorporates the whistleblower provisions of several other statutes, protecting employees who report violations of various airline, nuclear power and environmental laws.
With public health organizations predicting an increased spread in Zika infections, it may be wise for U.S. employers to educate their employees regarding the threat posed by the virus, as well as the protective measures taken by the employer. Employers should familiarize themselves with OSHA’s “Interim Guidance for Protecting Workers from Occupational Exposure to Zika Virus” and remain prepared to quickly respond as new information about the virus develops. Companies can also find up-to-date information and recommendations regarding safety and prevention practices related to the Zika virus on the CDC’s website at www.cdc.gov/zika. •