The Zika Virus: Impact on the Workplace

The Zika Virus: Impact on the Workplace

The World Health Organization (WHO), on February 1, 2016, designated the Zika virus as a “public health emergency of international concern.” First identified more than 50 years ago, Zika has caused panic in recent months because of its “strongly suspected” causal connection with a rare congenital condition called microcephaly, a condition that causes babies to be born with unusually small heads, and, in a large majority of cases, damaged brains. In adults, the WHO suspects Zika to be linked with the rare neurological disorder Guillain-Barré syndrome (GBS), which causes the body’s immune system to attack the nervous system, causing gradual weakness in the legs, arms, and upper body, sometimes leading to complete paralysis. Transmitted by infected mosquitos, the WHO has estimated that Zika will reach most of the western hemisphere and infect up to 4 million people by the end of the year.

Because the U.S. Centers for Disease Control and Prevention (CDC) has issued travel notices for a host of countries, including in Central and South America, the Caribbean, and Pacific Islands, some Zika related anxiety has caused workplaces across America to ask questions, especially those with employees who travel to the affected regions. This post explores some of those potential employer concerns associated with Zika, and addresses specific issues employers will face in regard to the virus.

 

Background

Thought to be spurred by climate change, Zika, according to the CDC, fortunately is not transmitted by casual contact from person to person; it’s instead transmitted through the exchange of blood or bodily fluids in childbirth or sexual activity. Reported symptoms, in only one in five infected people, last less than a week and are fairly mild: fever, rash, joint pain, headache, and conjunctivitis. Currently, there are no commercially available Zika tests for doctors to administer to their patients; only labs at the CDC and a handful of states are currently capable of diagnosing an infection. (See a recent update here). And while there have been multiple reports stating that there are no vaccines available for Zika, as of the date of this writing, a biotech company in India found not one – but two possible vaccines. The WHO said it will take at least 18 months for any shots against the virus to be ready for clinical trials.

In countries such as Brazil and Columbia, Zika cases total over 30,000. In the United States, the number of reported incidents span only 13 states and the District of Columbia. However, CDC officials say that of the reported U.S. incidents, 50 are linked with travel; one from sexual contact. Furthermore, they state that U.S. living standards such as screened windows and widespread air conditioning, as well as relatively low population density, should mean the virus can’t spread as rapidly as in Brazil and Columbia. And while employers will undoubtedly want to prevent the spread of disease in the workplace, they must remain careful not to engage knee-jerk reaction which might have the effect of encroaching employee rights.

 

Zika virus cases in the U.S.
Map of U.S. Zika virus cases. Tribune News Service 2016

 

Unlawful Employer Action

Employer action in response to Zika, while seemingly in the best interest of employee personnel, can violate federal law under the ADA,[1] Title VII,[2] and OSHA[3] standards. Accordingly, employers need to be aware of common pitfalls that can lead to lawsuits under these laws, as well as other additional state or local laws.

  • An Employee’s Refusal to Work. An employee will probably not be permitted to refuse to perform their work duties, in light of Zika. Under OSHA standards, 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. Because the Zika virus is spread by mosquito bites, which can be prevented with the appropriate precautions (see here), this OSHA regulation is not likely to apply to an employee who refuses to perform their work, absent particular circumstances such as pregnancy. However, an employer must not prohibit an employee from personal travel; employers cannot prohibit an employee’s otherwise lawful conduct.
  • An Employee Medical Exam. Employers likely cannot require a medical examination for an employee who has traveled to an area with a Zika outbreak before they return to work. Under the ADA, employers can require a medical evaluation only if it is job related and consistent with a business necessity. Specifically, the ADA allows employers to order a medical examination when the employer has a reasonable belief (based on objective evidence) that an employee’s medical condition poses a “direct threat” to the workplace.

 

During a pandemic, the Equal Employment Opportunity Commission (EEOC) states that an employer should rely on the latest CDC health assessments in determining whether an illness is a “direct threat.” Here, because Zika is not spread through person to person casual contact (i.e. a handshake), there does not seem to be a direct threat to the workplace, and hence the ADA standard probably doesn’t apply.

 

  • Quarantined Employees. An employer likely will not be permitted to force an employee to stay home. Since public health agencies have not imposed any quarantine restrictions on persons returning from Zika infected areas, any attempt by an employer to do so might be challenged by an array of legal claims, such as claims based on privacy, disability, and discrimination, including race and national origin.

 

  • Pregnant Employees. An employer will not be permitted to enforce a travel ban against pregnant women or women of child-bearing age, or against men with pregnant partners, or otherwise subject them to restrictions in order to protect them against infection. Under Title VII, employers are prohibited from taking adverse employment action against women whose jobs may pose reproductive health risks. For example, in a famous Supreme Court case the employer had a policy barring all female employees, except those who were infertile, from performing jobs that exposed them to lead. The employer said its policy was designed to protect female employees’ unborn children against the risk of birth defects. However, the policy discriminated on its face on the basis of sex, and therefore violated Title VII.

 

The law holds that an otherwise discriminatory employment action cannot be rendered lawful because the employer’s motives were benign. In other words, even if an employer believes it to be in an employee’s best interest, the employer cannot make health-based decisions for the employee, including female employees who may be pregnant.

 

Appropriate Employer Responses

With regard to any potentially infectious disease, a best practice for employers is to educate its workforce. In the specific case of Zika, employers should:

  • Educate employees about the risks of travel to affected regions;
  • Explain how Zika is transmitted and what the potential symptoms are;
  • Assure employees that the situation is being monitored by public health agencies and that the risk of transmission is low;
  • Focus on emphasizing good mosquito bite prevention practices. (See the CDC).

Here, it is crucial for the right information to get through to employees. This is especially true for employers who may have pregnant employees or employees who have pregnant spouses or partners traveling to Zika infected regions. More information about Zika and pregnancy can be found here.

As an alternative, employers should consider reinforcing their sick leave policies. That is, supervisors should remind employees that if they are sick or are feeling sick to stay home and utilize the employer’s leave policy. Under the FMLA,[4] employers with more than 50 employees must provide up to 12 weeks of unpaid, job-protected leave for certain medical situations. In addition, at least four states including California, Connecticut, Massachusetts, and Oregon further require some employers to provide employees with mandatory sick leave benefits.

by Nikko Stevens

 

[1] Americans with Disabilities Act.

[2] Title VII of the Civil Rights Act of 1964.

[3] Occupational Safety and Health Administration.

[4] Family and Medical Leave Act.

Equal Pay: The White House Gets Serious

On January 29, 2016, the White House, vís a vís President Obama, released its intent to take further action addressing a troubled reality in this country – the gender wage gap. A White House Fact Sheet notes that the median wage of a woman working full-time, year-round in the United States is about $39,600 – only 79 percent of a man’s median earnings of $50,400. In part based on state action in California and New York addressing equal pay laws, President Obama is pushing forward to advance pay equality. His call to action was met, when on February 1, 2016, the Equal Employment Opportunity Commission (EEOC), in partnership with the Department of Labor (DOL), released a finalized proposal of a rule in the Federal Register. See the proposed rule here.

Essentially, the new rule amends the Employer Information Report (EEO-1) that employers with more than 100 employees already file with the federal government, which includes information on the racial, ethnic, and gender breakdown of their employees. The proposed revision would allow the federal government to gather additional pay information including data on employees’ W-2 earnings and hours worked. The government states that the “new policy lays important groundwork for progress toward achieving equal pay, as it will encourage and facilitate greater voluntary compliance by employers with existing federal pay laws- such as by evaluating how they are currently paying their employees.”

It’s important to note that the proposal does not compel employers to collect new data, but rather require the reporting of pay data that employers already maintain in the ordinary course of business. Specifically, the new pay data that’s requested by the government consists of grouping employees into 12 pay bands for 10 different EEO-1 job categories. For employers, the EEOC has published a proposed pay data collection form; it is available here.

As it comes on the seventh anniversary of the Lily Ledbetter Fair Pay Act, a federal law making it easier for employees to bring equal pay claims, this new rule would cover more than 63 million Americans, according to the White House. Federal contractors and subcontractors with between 50 and 99 employees will only be required to submit the current information required by EEO-1, and not the new W-2 wage and hour information, however.

Employers would be encouraged to submit their comments to the proposed rule during the public comment period, which closes April 1, 2016. And if the rule goes forward as planned, it would be slated to take effect September, 2016, with those employers having over 100 employees submitting for the first time, the new pay data, beginning September, 2017.

Final note: Because of the government’s vociferous intent to pursue pay equity, employers would be well-advised to conduct a pay audit of their practices and identify wage gaps that can be attributed to gender-specific, or any other discriminatory differences. And before the EEOC starts to probe into red-flags shown from the data, it would be crucial now for employers to address any of these unjustifiable pay disparities that may be borne out of prohibited discriminatory employment practices.

By: Nikko Stevens

THE DRONE WAR…OF WORDS

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By: Tim Kenneally

No, it is not a science fiction movie, but the folks on Capitol Hill are discussing a robot invasion – of our airspace. Since the Federal Aviation Administration (FAA) issued notice of its revised regulations for Unmanned Aircraft Systems (a/k/a drones) in December 2015, over 300,000 people have registered their drones with the FAA1.  However, hundreds of thousands more drones are likely in need of registration2.  In the wake of the new regulations and the registration frenzy, proponents and opponents of the changes in the law have flocked to the halls of government to voice criticisms and lobby for change.  While there is not much consensus among the interest groups, all seem to agree that clearer guidance is needed regarding drone usage.

Congress authorizes policy priorities and funding for the FAA every few years.  As of March 31, 2016, the FAA’s “authorization” from Congress has expired, and its reauthorization is taking center stage in the Drone war.   Businesses seeking to expand commercial use of drones are hoping to use this reauthorization process to promote their interests.  Advocates hope to convince Congress to lessen or eliminate current restrictions on flying in heavily populated areas and beyond the line of sight.  However, air safety concerns have thus far taken precedent over economic growth. The proponents of safety are many and vocal.   Take for example those in the State of Florida who voted in favor of an anti-drone bill and who have deemed drones “dangerous instruments.”3 Given these conflicting interests, we expect Congress to move cautiously.  Those eager to get started in the drone business should speak to those knowledgeable about the current regulatory scheme and the expected changes that lie on the horizon.

Caution or not, there are billions of commercial dollars and massive commercial growth in drones. Those seeking to garner a share of the pie will want to put together a solid business plan with the assistance of knowledgeable and determined legal representation.

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https://www.faa.gov/news/press_releases/news_story.cfm?newsId=19914

2 http://dronelife.com/2015/04/16/drone-sales-numbers-nobody-knows-so-we-venture-a-guess/

3 http://news.wfsu.org/post/senator-wants-drones-classified-dangerous-instrumentality

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