The Olympics in Rio have been a huge success for American athletes, but the games have also brought some hazards. U.S. Swimmer, Ryan Lochte, was mugged at gunpoint and other athletes have dealt with any number of gastro-intestinal problems associated with travel to tropical climates. Among the more frightening hazards is the Zika virus, which can cause major concerns, especially for pregnant women.
In addition, Zika virus has officially spread to the United States, with at least 30 cases reported in Miami, and is spreading between states as health officials in Texas announced Monday that a resident contracted Zika in Florida and brought it home. In this week’s blog, HRLegalist addresses the Zika virus and its implications regarding travel for employers.
With the Zika threat continuing to grow for US employers, what should employers tell employees regarding business travel?
First, employers cannot forbid pregnant employees (or women of child-bearing age) from traveling from places infected with Zika. The Supreme Court held in Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187 (1991), that Title VII prohibits companies from excluding or firing women from positions that may pose a hazard to reproductive health. Instead of forbidding travel, employers should educate employees about the risks from traveling to affected areas and let the employee decide if she is willing to take such risks. As an alternative, employers could prohibit business travel to affected regions for all employees, not just women.
What about employees who refuse to travel due to concerns about Zika?
Under the Occupational Safety and Health Act, employees may refuse to work only where there is an objectively “reasonable belief that there is imminent death or serious injury.” Refusing to work without such an objective belief may result in disciplinary action by the employer. Since Zika arguably can be prevented with appropriate protections, this standard is unlikely to be satisfied absent particular factual circumstances, such as pregnancy. However, due to the heightened level of public concern regarding Zika, extreme caution should be taken to avoid adverse employment actions due to a refusal to travel to Zika affected areas. Instead, employers should consider postponing the trip or sending the employee on a comparable trip to a location that isn’t affected by Zika. In addition, employers should use counseling, education and other available managerial skills to avoid legal headaches.
What about the employee who is planning a Caribbean vacation or the employee who is returning from the Olympics in Rio?
Employers cannot forbid employees from personal travel to Zika infected areas and cannot require a medical examination from an employee who has traveled to an area with a Zika outbreak. According to the American with Disabilities Act (“ADA”), employers can require a medical evaluation only if it is justified by business necessity. The ADA permits an employer to request medical information or order a medical examination when the employer has a reasonable belief, based on objective evidence, that an employee will pose a “direct threat” because of a medical condition. The Equal Employment Opportunity Commission’s Pandemic Guidance states that an employer must take direction from the CDC or state/local public health authorities in determining whether an illness is a direct threat, and cannot make that assessment “on subjective perceptions . . . [or] irrational fears.” Because Zika is spread through mosquitoes and sexual contact and is not transmitted from person to person in causal contact, the ADA standard is probably not met in most workplaces. In addition, employers should not impose quarantines for individuals who return from travel from Zika affected areas. Doing so puts employers at risk for liability under medical privacy laws, disability discrimination laws, state wage and hour laws, as well as potential race and national origin discrimination claims.
For more information regarding protecting workers from exposure to Zika, see the interim guidance issued by the Occupational Safety and Health Administration (“OSHA”), which can be found at: https://www.osha.gov/Publications/OSHA3855.pdf.
Larae N. Cunningham is an attorney in Obermayer’s Labor Relations and Employment Law Department. Her practice focuses on counseling management in all aspects of labor relations and employment law including discipline, termination, reductions-in-force, document retention, family and medical leave, reasonable accommodation under the ADA, NLRB compliance and wage and hour issues. She can be reached at 215-665-3092 firstname.lastname@example.org.