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How employers can avoid being bitten by the Zika virus

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Zika virus

According to the Centers for Disease Control and Prevention as of February 26, 2016, there are 107 travel-associated Zika virus disease cases in the United States.  As the number of countries confirming the Zika virus infection continues to grow worldwide after the May 2015 announcement of the first confirmed case in Brazil, what should companies do regarding employees working in or planning business travel to affected areas around the globe?

Concerns about protecting employees from infection while keeping in mind employment-related legal considerations is a delicate balancing act, but it can be managed with careful business planning.

The Zika virus is slightly different from the H1N1 outbreak in 2009, as it appears to pose the highest threat to one category of individuals – pregnant women – with the potential to cause fetal harm.  However, restricting travel for pregnant employees or employees of child bearing age may give rise to claims of discrimination on the basis of gender or pregnancy.  The United States Supreme Court ruling in Automobile Workers v. Johnson Controls, 499 U.S. 187 (1991), provides that employers may not exclude women from positions based on potential harm to a fetus.

To address concerns for employees and the work environment regarding prevention of infection without running afoul of the law, consider a focused business-related travel restriction on targeted geographical regions applicable to all employees. Any such restriction, however, cannot be applied to employees’ personal travel plans.

For travel to affected geographic regions which cannot be rescheduled or conducted by other business means (video conference or a webinar), consider education on the symptoms and methods of transmission of the Zika virus to all employees scheduled for business travel in high risk areas.  The CDC has issued precautions.  Preventive measures include using insect repellant, wearing long sleeves, and wearing long pants.

Another guidepost for gauging relevant legal considerations is the technical assistance document issued by the Equal Employment Opportunity Commission contemporaneous with concerns regarding the H1N1 outbreak in 2009. When deciding issues surrounding the more contemporary Zika virus threat, the EEOC guidance on the parameters of handling pandemics under the Americans with Disabilities Act applies with equal force.  It is best not to require employees returning from travel in affected regions to undergo a medical examination or to segregate any employee in the office following such travel.  While medical examinations are allowed under the ADA, the circumstances are very specific.  An employer must have a reasonable belief that the employee poses a direct threat to others – a standard generally not met in most work environments because the Zika virus cannot be spread by casual contact.  Contact counsel for guidance with specific situations.

As news of the disease evolves, employers should monitor its status and work closely with the human resources department to navigate these quickly developing changes.  Employee travel is a way of life for some companies and executives. Being informed and educated will help as employers work with employees to better understand the risks and options for travel when faced with the prospect of rapidly spreading diseases and infections.

This article appeared originally in Business First in Louisville.

Wendy Hyland Wendy Hyland is of counsel in the Louisville office of Fisher & Phillips LLP. She represents employers in all aspects of employment law, handling claims involving the full complement of employment statutes including the Americans With Disabilities Act, the Family and Medical Leave Act, Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Kentucky Civil Rights Act, and related tort and contract claims. Wendy also works with clients on effective policies, investigations, and training.