Zika Virus and the Workplace: A Primer for Arizona Businesses

by Shayna Balch

shutterstock_384185857The World Health Organization (WHO) declared Zika virus an international “public health emergency.” And while Arizonans have found themselves immune from many of the previously issued health alerts, Zika is striking closer to home.

Currently, Zika is primarily concentrated in tropical and sub-tropical climates, and the concern is elevated in Arizona, especially among employers whose workforces travel for business. The latest statistics point to 82 travel-associated cases being reported in 21 states and the District of Columbia.

Although turning to technology, including videoconferencing and virtual meetings, can help, there are times when travel is unavoidable. That’s when education becomes vital to managing concerns.

While the Centers for Disease Control suggests that women who are pregnant consider postponing travel to affected areas, it’s important for all employees required to travel to know about virus transmission, infection risk, protection measure, and refusal to travel.

Employees and Travel to Zika-Infected Countries

Under Occupational Safety and Health Administration standards, employees can refuse to work only if they genuinely believe that imminent danger exists and a reasonable person would agree. Given the relatively low risk presented and means available for avoiding the risk, this standard would be difficult to meet, leaving employers with the right to discipline those who refuse travel. However, despite availability of reasonable precautions, a pregnant employee may have protection under OSHA.

Employers cannot prevent employees from traveling. The U.S. Supreme Court offers legal guidance that employees must make their own health-related decisions. Even if an employee is pregnant, the employer must leave decisions regarding the welfare of future children to the parents after advising them about the risks and preventive measures that can be taken.

Infected or Symptomatic Employees

Under the Americans with Disabilities Act, employers can require a medical evaluation only if it is job related and consistent with business necessity. Unless illness poses a direct threat, employers may not require medical exams or prohibit employees from working. Because public agencies have not required quarantine of individuals returning from affected areas, employers who impose restrictions expose themselves to a host of legal claims.

Personal Travel

Health emergencies often incite panic and fear. As such, employees may develop concerns related to co-workers returning to the workplace after personal travel to affected areas.

Employers cannot prevent employees from traveling to infected areas for personal reasons. Under the ADA, employees are not required to submit to a medical examination before returning to work nor be prohibited from returning unless there is reasonable belief, based on objective evidence, that their condition poses a “direct threat.” Since Zika is not transmitted through casual contact, this won’t apply in most workplaces.

As the situation evolves, questions about health and legal implications are being raised, especially in Arizona where our largest trading partner has been identified by WHO as an affected area. Mitigating fear through factual information and education will be imperative as employers manage operations during the outbreak.

Shayna Balch is a partner in the Phoenix office of Fisher & Phillips LLP, representing employers in labor and employment litigation, employment discrimination and harassment, compliance audits and counselling, and employment policies and procedures.

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