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Address employees' concerns, advise prevention steps and meet FMLA and OSH Act obligations
With the Zika virus so prominent in the news, worksite wellness initiatives should relay reasonable prevention steps to employees but also keep the threat in perspective.
The virus—transmitted primarily through the bite of an infected mosquito, blood transfusions and sexual contact, and
possibly through other bodily fluids—can produce serious flu-like symptoms in adults but can cause crippling and life-threatening birth defects in a newborn when a pregnant woman is infected. The virus is posing large public health concerns in South America but in the U.S. only a few cases of mosquito-transmitted Zika have been documented, to date,
in South Florida and
"Employers should be prepared and proactive in protecting employees," said Rebecca Bernhard, a labor and employment attorney at law firm Dorsey & Whitney in Minneapolis. "Due to the extensive coverage of Zika and the serious health concerns for those who may have children, employers are wise to consider how they will address any problems associated with the Zika virus."
The U.S. Centers for Disease Control and Prevention (CDC)
has urged organizations that employ outdoor workers to be aware of the risks of exposure to Zika through mosquito bites and to train workers on how to best protect themselves.
However, "while it's important to know what laws guide an employer's response, it is also wise not to overreact," Bernhard said.
With few reports of mosquito-spread Zika in the U.S., "employers can focus more on preventative measures to limit the potential spread through exposure to bodily fluids," she said. "In general, workers who are exposed to mosquitoes while on the job, or to the blood or other bodily fluids of infected individuals, may be at risk for acquiring Zika while working."
The first step to consider is "informing employees of the risks of Zika, its symptoms and
simple preventative health measures that help to stop the spread of all diseases, including avoiding contact with bodily fluids of those that are ill, washing hands and avoiding touching eyes, nose, or mouth."
Employers with health-promotion programs that include communications such as wellness newsletters should use those vehicles to address Zika concerns. Relevant information also can be posted in common areas.
FMLA and OSH Act Concerns
An employer's legal obligations to allow unscheduled leave depends on the severity of the infection. "An employee's own infection—to the extent it does not relate to the infection of their child—is not likely a 'severe health condition' under the Family Medical Leave Act [FMLA]," Bernhard noted. "Due to symptoms associated with Zika virus among fetuses and infants, however, an infection affecting a fetus—and time required to care for the child after birth—may qualify as a severe health condition under the FMLA."
Thus, "an employee who must care for a family member who is infected is entitled to leave under the FMLA."
As a reminder, FMLA leave does not need be paid, and federal law does not prohibit employers from requiring that employees use paid leave contemporaneously with any FMLA leave, Bernhard pointed out.
can draw lessons from past flu seasons regarding "whether an employee is entitled to refuse to come to work due to a concern about illness and, conversely, whether an employer can prohibit a sick, or suspected sick, employee from showing up for work," she said.
Under the Occupational Safety and Health Act (OSH Act), she explained, an employee may refuse to work due to safety concerns at the workplace, as long as those concerns are reasonable. "At this point, concerns about contracting Zika are probably not reasonable concerns that would allow an employee to refuse to come to work."
Currently, the CDC recommends that all people who have traveled to areas where Zika is locally acquired monitor their symptoms and avoid unprotected sexual contact for a 28-day period. The
CDC to date has identified only one area in the U.S. (the Wynwood neighborhood of Miami) where Zika is locally acquired.
"Outside of this area, an employee's concerns of contracting Zika while on the job are relatively minimal, considering the easy prevention of unsafe exposure to bodily fluids," Bernhard said. "It may be advisable for employers to request that any employee who has traveled to a Zika-affected area to work from home or take a paid leave of absence for the duration of the 7-day period during which Zika can be passed from an infected person to another mosquito," which can then further transmit the virus, she said.
"While employers can discourage travel to, and inquire whether employees have recently returned from, Zika-affected areas, employers cannot forbid travel to these areas," she cautioned.
When discouraging travel or inquiring into travel history, employers need to be aware of federal and state discrimination laws. For example, "employers should ensure employees who have ties to South America are not unlawfully questioned with respect to their exposure or their family members' exposure to the Zika virus," Bernhard said.
And, of course, "any policy regarding Zika should be applied uniformly."
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