LEGALLY SPEAKING
EMPLOYERS’ RESPONSIBILITIES CONCERNING ZIKA
W
Jamie M. Brabston, Lehr Middlebrooks Vreeland & Thompson, P.C.
hat do the ADA, FMLA, OSHA, NLRA and ZIKA have in common? Potential legal
obligations for employers. The World Health Organi- zation declared the Zika virus to be a “Public Health Emergency of International Concern” on February 1, leading to concerns and questions from employees around the world. Although Zika is predominantly transmitted by mosquitos, there have also been reports of transmission of the virus through blood transfusions and sexual contact. With the spread of the virus to the U.S., employers here must be aware of their legal responsibilities to workers. Under the Occupational Safety and Health Act (OSHA), employers have a legal obligation to provide a safe and healthy workplace. OSHA even requires employers to protect employees against “recognized hazards” that could lead to serious injury or death. If employees are reasonably likely to be “exposed” to Zika at a worksite, OSHA may require the employer to develop a plan and specific procedures to pro- tect its employees. If an employee contracts the Zika virus, the
Family and Medical Leave Act (FMLA) and/ or the Americans with Disabilities Act (ADA) may come into play. Under the FMLA, covered employers must provide up to 12 weeks of unpaid leave to a qualified employee who has a “serious health condition.” An employee who contracts the Zika virus could arguably qualify for this benefit. The ADA provides protections to employees of covered employers who may have a “disability” but who are otherwise quali- fied and able to perform the essential functions of their jobs. Because Zika has rarely resulted in serious disabilities, it is unlikely that a case of Zika qualifies as an ADA disability; howev- er, employers should be aware that employees could possibly be entitled to accommodations related to potential Zika exposure. Employers should not, however, require medical examina- tions of employees who have travelled to an area with a Zika outbreak unless it is justified by business necessity, which would be a tough
32 THE LANDSCAPE PROFESSIONAL > NOVEMBER/DECEMBER 2016
standard to meet. The National Labor Relations Act (NLRA)
could have application if an employee refus- es to work due to fear of exposure. Such a refusal, if based on concerns about health and safety, would most likely constitute “concerted protected activity,” which would provide legal protection to the employee. Furthermore, if an employee complains on social media about exposure to mosquitos, the complaints may be “concerted protected activity” as well, and thus employers should think twice before taking any disciplinary action against such employees. Clearly, employers should be aware of these possible legal ramifications and take proactive steps to prevent or minimize the possibility of Zika exposure to their employees. Educating employees on ways to protect themselves is a great place to start. Guidance provided by the CDC recommends that “[i]f requested by a worker, [an employer should] consider reas- signing anyone who indicates she is or may become pregnant, or who is male and has a sexual partner who is or may become preg- nant.” The CDC guidance further recommends that outdoor workers wear “clothing that covers their hands, arms, legs and other exposed skin” and that they use an insect repellant “contain- ing an EPA-registered active ingredient,” as well as additional sun protection. Employers should also get rid of sources of standing water. These recommendations are for all employees who may work or travel to areas with “active Zika virus transmission” and not just for pregnant employees or women of childbearing age. 7
Phone consultations with LMVT are a member benefit and are included in the cost of NALP membership. Please call the LMVT main office at 205-326-3002 and ask for Richard Lehr.
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