Guest view: What employers need to know about the Zika threat

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Since the end of July, cases of U.S.-contracted Zika virus have spread throughout several Florida counties and government officials in that state, along with others in the southern half of the country, are placing their public health departments on high alert.

The threat of the virus has even reached the commonwealth. Pennsylvania now has one of the highest numbers of travel-related Zika cases in the U.S. and at least one case has been spread through sexual contact. As of Sept. 7, the Pennsylvania Department of Health confirmed 95 cases, with others under investigation.

In light of the growing concern over Zika, employers must educate their employees about the virus and take steps to protect their workforce.

What steps can I take to reduce exposure to mosquitos in my workplace?

Employers should take the following active steps to protect all employees working outside:

• Purchase mosquito repellant containing EPA-registered active ingredients and instruct employees on proper use.

• Provide long sleeves and long pants in light colors, and hats with protective netting if necessary. The Occupational Safety and Health Administration may view such clothing as proper protective equipment for jobs where mosquito contact is inevitable.

• Remove any standing water from company property to avoid easy mosquito breeding grounds.

• When possible, move work to an inside location and make efforts to reassign any employees who express fear about contracting the virus due to outdoor work.

Employers can also turn to OSHA’s publication “An Interim Guidance for Protecting Workers from Occupational Exposure to Zika Virus” and OSHA “QuickCards” for more information.

What limitations can an employer place on employees to avoid Zika?

In an attempt to implement best practices to protect employees from exposure to mosquitoes that may carry the Zika virus, employers must not overreach out of panic or an unreasonable fear of liability. Namely, employers should not:

• Prohibit employees from personal travel to areas where Zika is present, especially pregnant women or women of child-bearing age, as such actions may result in a claim for sex discrimination under Title VII of the Civil Rights Act of 1964, as amended, and/or the Pregnancy Discrimination Act.

• Prohibit employees from coming to work after traveling to a location where the Zika virus exists, as this could result in legal liability.

• Require a medical evaluation for any employee who has recently traveled to an area where the Zika virus is prevalent. At this time the only evidence of person-to-person transmission has been during sexual contact and as such, an employee returning from an area of Zika outbreak does not likely present a “direct threat” to co-workers.

What should an employer do if the employee refuses to work based on fear of Zika exposure?

Under OSHA regulations, employees have the right to refuse to engage in work if they have an objectively reasonable belief that they are in real danger of death or serious injury and there is insufficient time, due to the urgency of the situation, to eliminate the danger.

If the employee does not have an objectively reasonable belief that he or she will be exposed to Zika, the employee may be disciplined for refusing to engage in work. However, employers should consistently reinforce safe work practices to avoid any potential exposure and should consult with counsel if an issue arises in the workplace.

Employers should also remain educated about the threat of Zika in their communities to avoid any claim that they should have known of the existence of such hazard and are, thus, liable under applicable OSHA standards or state negligence law. Of course, if the state department of health raises the Zika threat level, employers should take more aggressive steps to protect the workforce from exposure.

Jill M. Lashay is an attorney and shareholder in the labor and employment section of Buchanan Ingersoll & Rooney PC. She represents management in areas of labor and employment law.