The Zika Virus, Travel and Employer Liability

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With the threat of Zika virus now being deemed a global "public health emergency" by the World Health Organization (WHO), businesses whose employees travel or work in the 62 affected countries need a crisis management strategy. Accordingly, employers should take steps to help mitigate risk and provide human resource leaders with information to respond to employee concerns.

The U.S. Centers for Disease Control (CDC) has issued a recommendation that pregnant women avoid traveling to Zika-affected areas due to the documented risk of birth defects, including microcephaly. Under the Occupational Safety and Health Act's ('OSHA') General Duty Clause, employers are required to protect employees against "recognized hazards" to safety or health. According to an article by international law firm, Seyfarth Shaw, this may include protection of those employees reasonably likely to be exposed to "Zika".

The CDC and OSHA advise that "employers should consider allowing flexibility in required travel to areas with active Zika transmission for workers who are concerned about Zika virus exposure," citing the increased risks for pregnant women.

Let Employees Decide

Even though Zika may represent a danger to certain employees, there are risks in barring any segment of the employee population from traveling to Zika-affected countries. The Society for Human Resource Management (SHRM) notes that the U.S. Supreme Court has held that the Civil Rights Act prevents the exclusion of women based on reproductive risks because it constitutes gender discrimination. Thus, employers should be cautioned that solely preventing pregnant women or women in general from traveling to Zika-affected countries could constitute gender- or pregnancy-based discrimination, and should consult with counsel before implementing such a practice.

Similarly, the Occupational Safety and Health Administration (OSHA) prevents disciplinary actions against employees who "refuse to work" in an environment where they have the reasonable expectation to "be exposed to the hazard." A public health crisis such as Zika, and travel to a Zika-affect environment, may qualify as such a hazard warranting the right for an employee to refuse to work. For human resource leaders, the wisest path is to suspend travel to Zika affected areas, but if travel is necessary permit employees to make their own, informed decisions but establish a protocol for providing employees with relevant information as well as responding to incidences where employee believe they have been affected.

Education Is Crucial

Reuters reports that a recent survey by the U.S. State Department's Overseas Security Advisory Council (OSAC) revealed that 38 percent of organizations are allowing female employees to defer or avoid travel, while 20 percent are affording the same options to male employees. Most are providing education, while a few are recommending employees consult with a health professional about risks prior to business travel.

While a definitive policy on allowing employees to opt-out should be developed in consultation with internal counsel, comprehensive employee education and communications should play a key role in how HR leaders manage risks. Even if your organization does not sponsor travel to affected countries, education is still crucial. The CDC is now recommending organizations implement educational programs if they have outdoor workers or employees who work in a laboratory setting.

Avoid Discrimination in Education

The Society for Human Resource Management (SHRM) advises that employers provide educational materials to all employees, regardless of demographics, to help avoid discrimination charges.

The New York Times reports Texas-based paper products manufacturer Kimberly-Clark is just one such organization that's chosen to educate all 16,000 of their affected staff on Zika prevention measures and information about how to protect against the virus "from what type of clothing to wear to the benefits of insect repellent."

Some organizations are also choosing to provide information on their policies in conjunction with Zika information. In business-wide communications about Zika risks, The New York Times informed employees they were free to opt out of any travel assignments that made them "uncomfortable about their own well-being." Organizations may decide they're best served by a similar approach to education by allowing employees to take informed caution in avoiding travel to Zika-affected areas.

Although decisions about a specific crisis management strategy should be made in consultation with your organization's counsel, HR leaders should work to make clear decisions about Zika and employer liability. By suspending non-essential travel, educating employees and instituting a travel opt-out policy, you should be able to help your employees make wise choices and decrease the chance of future liability.