Now that the Zika virus has hit the US with confirmed cases of locally transmitted infections, employers face a real threat to the health of their employees and their business. Typically spread through the bites of infected mosquitoes and direct contact with infected blood or other bodily fluids, the Zika virus can potentially affect anyone. As a result, some employees may fear performing job duties that may put them at increased risk for infection.
From providing insect repellent and personal protective equipment (hats, long sleeve shirts) to eliminating areas of standing water, there are simple measures an employer can take to ease concerns and protect their workplace from the Zika virus. However, what should an employer do if an employee refuses to go on that ever-important business trip to a Zika-affected location?
While an employer may require the employee to go on that business trip, provided the Centers for Disease Control (CDC) hasn’t issued a travel advisory to that area, it shouldn’t be quick to mandate the travel. For the sake of employee relations as well as goodwill, an employer should evaluate each situation separately.
Here are three issues to consider when addressing Zika virus-related business travel concerns of an employee:
1. Educate the Employee
An employer should first try to allay an employee’s concerns by educating them about the Zika virus, its transmission and how to protect against it. Understanding that the risk of exposure and infection is low may reduce the employee’s fears about traveling to an area known to be affected by Zika.
For example, an employer should address ways employees may protect themselves on their trip by:
- Applying insect repellant;
- Reducing time spent outside; and
- Learning about common symptoms, (fever, rash and joint pain) associated with the Zika virus.
Employees should also be informed that the virus may be present without symptoms. Therefore, an employee may decide to be tested upon returning from the trip.
2. Evaluate Legal Rights and Responsibilities
If the business trip is absolutely necessary and there is no alternative solution with the employee, such as conducting business remotely or in a different location, and the employee still refuses to go then the employer should evaluate its rights and responsibilities.
Under the federal Occupational Safety and Health Act (OSH Act), employees may refuse to perform their job duties if they have a reasonable belief of imminent death or serious injury. However, an employee who refuses to go on a business trip likely will not meet this standard since there are preventive measures he or she can take to protect against infection.
On the other hand, under the National Labor Relations Act (NLRA), an employee’s refusal to work that is based on health and safety concerns is considered protected activity. However, unlike the OSH Act, the NLRA does not require the employee to have a reasonable belief that the situation is unsafe.
An employer should also ensure that it complies with other federal laws such as the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). For example, under the ADA, you may not require an employee to undergo a medical examination upon returning from a business trip unless it is job-related and justified by a business necessity. Also, you should make sure to comply with the FMLA if an employee is eligible for leave if she or he suffers from Zika-related health conditions.
3. Address Pregnancy-Related Concerns
The Zika virus is known to cause the severe birth defect of microcephaly. As a result, a woman who is pregnant or trying to conceive (or a man whose partner is trying to conceive) may have serious concerns about traveling to an area with an increased risk of infection.
If faced with an employee’s refusal to travel, an employer should first note that under some state pregnancy accommodation laws, an employee may have a right to a reasonable accommodation, including a job transfer, job modification or time off, rather than going on the business trip. Engage in a good-faith conversation with the employee to determine whether and how the employee may be accommodated in that particular situation. A pregnant employee may not be forced to travel if the CDC has advised pregnant women to avoid traveling to that area.
Lastly, an employer may not prohibit an employee, including a pregnant employee, from traveling to an area known to be affected by the Zika virus. While the employer may have the employee’s best interests in mind, this type of “paternalism” has been declared illegal sex discrimination by the US Supreme Court.
For more insights and resources on how to address the Zika virus in the workplace, check out XpertHR’s Zika Virus in the Workplace – Hot Topic.