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by Dana Wilkie, www.shrm.org | February 04, 2016

As public health organizations and the global community try to understand the extent of the threat presented by the Zika virus, organizations are faced with difficult questions about how to respond, and what steps to take, both to protect their workers, but also to avoid invading the privacy of individuals. The Society for Human Resource Management (SHRM) delved into these questions, and offers these suggestions for organizations seeking advice on how to approach the Zika threat.

 

With growing concern over the Zika virus, the mosquito-borne disease possibly linked to birth defects, what should employers do about pregnant workers -- or those of childbearing age -- who plan to travel for business to affected countries or who are already working in these regions?

The spread of the virus has led the U.S. Centers for Disease Control and Prevention (CDC) to warn pregnant women and those planning to get pregnant against travel to about two dozen countries.

Can pregnant workers or those of childbearing age say "no" to business travel to these regions and be protected from repercussions? Should companies discourage these same workers from visiting these countries on business, even if such assignments may advance a woman's career?

Never Forbid Women from Business Travel

First, companies cannot forbid pregnant employees -- or women of child-bearing age -- from traveling to countries where the virus is a concern, says Ben Huggett, a shareholder in the Philadelphia offices of Littler.

Huggett noted that in the case of Automobile Workers v. Johnson Controls, Inc. the U.S. Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits companies from excluding or firing women from jobs that might pose reproductive health hazards.

"The Supreme Court found that such an exclusion constituted gender discrimination," Huggett says. "Employers can and should educate employees about the risks and can encourage them to make a decision not to travel to an affected country, but they cannot prohibit only pregnant women from traveling there. To be legal, a travel prohibition would have to be equally applied to all employees."

Women of Childbearing Age

Should a company try to ascertain which of its employees plan to become pregnant and therefore should be cautioned against traveling to infected regions?

Huggett says that excluding pregnant or childbearing-age women from any job assignment is gender discrimination, and "asking these questions would be prohibited," as well.

Instead, employers should make sure all workers whose job duties may take them to areas that the CDC has identified as at-risk are educated on the Zika virus's symptoms and modes of transmission, as well as on the precautions they should take to avoid mosquitoes and the risk of infection, said Michael Oliver Eckard, an attorney with Ogletree Deakins in Atlanta

"Employers who ask invasive questions about an employee's pregnancy or medical condition, or who treat pregnant or female employees differently from others, could be liable under Title VII or the Americans with Disabilities Act (ADA)," he says. "As in other situations, one of the biggest risks an employer faces here is that of an overreaction, particularly when an employer is attempting to forbid an employee from doing something that is a part of [her] job or interjecting itself into an employee's health care decisions, even with the best of intentions."

Scott Lockman is director of commercial insurance for Clements Worldwide, which provides insurance to expatriates and international organizations. He said employers actually have a duty to notify all employees about the Zika virus and to provide information about who could be at risk. A company that doesn't share this information could face liability, he said.

Moreover, Lockman says, because the virus has been detected in some men's semen, it's possible the virus could be sexually transmitted.

"We do not recommend restricting communication to one group of staffers" about virus-infected regions, he says. "What if communication was focused on pregnant females, but a male employee came back and infected his wife who became pregnant?"

Eckard says employers should educate workers using the precautions recommended by the CDC. These precautions generally include avoiding mosquito bites by wearing long-sleeved shirts and long pants, sleeping indoors or under a mosquito net, and using appropriate insect repellants.

Female Employees Already in Infected Areas

Typically, pregnant employees or those of childbearing age who are already conducting business in infected countries need only be wary of workplaces near standing water -- such as oil fields or fish farms where mosquitoes can be ubiquitous, Huggett says.

As for requiring or pressuring female employees at risk to relocate, he adds, "that would be gender discrimination."

"Further, as a practical matter, this disease is rapidly spreading across the Caribbean, Central and South America, and is expected to spread into the United States this year. Thus, it would be very difficult to have someone relocate to a safe area," he says.  

Eckard says there is nothing wrong with offering -- but not requiring -- relocation for an employee in an infected area who worries about being pregnant or planning to become pregnant.

That said, he cautioned employers against asking any employee whether she is pregnant or plans to become pregnant. If she volunteers such information, he says, it should be treated as confidential.

When Employees Refuse to Travel

Can an employee refuse to perform his or her job or travel based on concerns about Zika?

Under the Occupational Safety and Health Act, employees may refuse to work when there is a "reasonable belief that there is imminent death or serious injury," Huggett says. Refusing to work without such a belief may result in disciplinary action by the employer.

"Because this is a public health issue which is not work related, some employers may expect all employees to continue to do their jobs, including travel to affected areas," he says. "Although it is an emerging area of the law, pregnancy accommodation requirements under federal, state, and local laws may mandate that employers consider restructuring a job to exclude travel for a pregnant employee."

Quarantines and Medical Examinations

Employers should not require a medical evaluation for someone who has traveled to an area with a Zika outbreak, nor impose a quarantine on such employees, Huggett says. The ADA, he adds, can provide justification for an evaluation if the employer has a reasonable belief that a worker will pose a direct threat to others because of a medical condition. But because Zika is not transmitted from person to person in casual contact, the ADA standard is probably not met in most workplaces, he says.

As for quarantines, "employers who isolate or quarantine such individuals when public health agencies have taken no such action risk liability under medical privacy laws, disability discrimination laws, state wage and hour laws, as well as potential race and national origin discrimination claims." 

Eckard agrees that employers should be cautious about requiring medical examinations or imposing quarantines.

"Such actions are generally not allowed by law except in very specific circumstances," he says. "The risk of a Zika infection does not likely justify such actions now, and employers should carefully consult with HR and legal counsel before undertaking any such measures in a given circumstance."

Dana Wilkie is an online editor/manager for SHRM. This article is reprinted with permission from www.SHRM.org, c 2016. All rights reserved.