February 25, 2016

Zika Virus: What It Does—and Does Not—Mean for Nonprofit Employers and their Pregnant Employees

7 min

The Zika virus is a serious global-health problem. On February 1, 2016, the World Health Organization (WHO) declared the spread of the Zika virus throughout Latin America and the Caribbean a "public health emergency of international concern." The WHO estimates that three-to-four million people will be infected with the virus across the Americas over the next year. The federal Centers for Disease Control and Prevention (CDC) has issued a health advisory and traveling notices for Americans planning to travel to regions or countries where local transmission of the Zika virus is rampant.

Yet it is essential that U.S.-based nonprofits and their employees keep the Zika virus in context. It is rarely fatal, and most who contract the virus never have any symptoms. For those who develop symptoms, it is generally like having a case of the flu. Zika would not be attracting such attention, except that now there are reports of a suspected link to a serious but rare birth defect in babies born to women who are infected with the virus.

What Is the Zika Virus?

The CDC describes Zika as a viral infection that most commonly results in symptoms that include fever, rashes, joint pain, muscle pain, headaches, and conjunctivitis (red eyes). These symptoms generally last several days to a week, but rarely make people sick enough to require hospitalization. Only about one in five people infected with the virus actually becomes sick and symptomatic.

Although discovered nearly 70 years ago, the Zika virus is garnering attention because of recent evidence that the virus is linked to Guillain-Barré syndrome and microcephaly, a neurological disorder that causes babies to be born with abnormally small heads, resulting in severe developmental issues and, in some cases, death. The CDC issued a statement that "[t]he full spectrum of outcomes that might be associated with infection during pregnancy" and the factors that might increase risk "are not yet fully understood."

How Is It Transmitted?

The Zika virus is transmitted to people predominantly through the bite of an infected Aedes mosquito. In rare instances, the virus has also spread from mother to child when the mother is infected during the pregnancy. The CDC says that "[s]exual transmission of Zika virus is possible," citing multiple reported cases, but notes that "whether infected men who never develop symptoms can transmit Zika virus to their sex partners is unknown," and "sexual transmission of Zika virus from infected women to their sex partners has not been reported." Zika is not transmitted by air, water, or non-sexual human contact.

What Should Employers Do to Protect Their Employees and Workplace?

An employee with symptoms is like an employee with the flu. The employee probably will need to go home; some may conceivably work through it. The Zika virus is not considered a disability under the federal Americans With Disabilities Act. Mild-enough symptoms might not even qualify as a serious health condition under the federal Family and Medical Leave Act.

Employers need to keep in mind that the symptomatic employee does not pose a risk of transmitting the virus to others in the workplace, short of sexual contact.

What Should Pregnant Employees Know about Travel to Zika-Affected Countries?

Nonprofits and their pregnant employees should be concerned about travel to affected countries, particularly Brazil, Colombia, El Salvador, Venezuela, Martinique, and Honduras. The CDC's travel guidelines recommend that pregnant women postpone traveling to regions where local transmission of the Zika virus is common.

Given these concerns, what should prudent nonprofits do to assist their female employees and to protect the organization's interests?

At a minimum, nonprofits should advise female employees of the CDC's recommendation. This would enable pregnant employees, and other women who may become pregnant while traveling, to make an informed decision about whether to travel now to the affected areas.

If an employee is reluctant to abide by the CDC's recommendation, an employer should explore possible reasonable accommodations with that employee. Can the trip be postponed? (This may be difficult, because there is no determinable end, as of yet, to this public health crisis.) Can the travel destination be relocated? Is it feasible for the employee to participate remotely? Does the employee wish to suggest a substitute individual to undertake the travel (a colleague or otherwise)?

If there is no reasonable accommodation that is mutually agreeable, other questions arise:

  • What if your pregnant employee wishes to travel to an affected country now, despite the CDC's recommendation?
    Well-intentioned nonprofits should be careful. Ultimately, the pregnant employee decides what pregnancy-related risks to assume or avoid, under the U.S. Supreme Court's unanimous ruling in the 1991 case United Auto Workers v. Johnson Controls. Employers who start reassigning job tasks based on pregnancy (or the possibility of becoming pregnant) risk claims of discrimination under the federal Pregnancy Discrimination Act that amended Title VII of the federal Civil Rights Act of 1964, and comparable state laws.
  • Should your organization have pregnant employees who wish to travel to affected countries "sign something" to relieve the organization of possible legal liability to the woman or her baby?
    Nonprofits may consider asking such employees to sign a form in which they acknowledge that they are assuming the pregnancy related risks associated with such travel. Before you do, however, consider: Do you ask all employees to sign such forms before undertaking job assignments that entail an element of public health risk? Asking only pregnant employees, or only female employees of child-bearing age, may be problematic.
  • Should such a form include a waiver of the employees' right to sue you if they or their babies suffer Zika-related harm?
    While such a waiver might be enforceable against the employee, it is unclear whether such a waiver would be effective against a claim on behalf of the baby.
  • Does workers' compensation cover potential Zika-related harm to the employee or her baby caused by work-related travel?
    The U.S. Supreme Court specifically declined to answer this question in the Johnson Controls case, and it remains unsettled whether workers' compensation laws would cover harm to the baby caused by the mother's work-related travel. In other words, workers' compensation laws may not preempt a lawsuit on behalf of the baby.
  • Is there insurance for claims by a pregnant employee or her baby?
    Such claims may be covered by what is called "employers' liability" insurance that is separate from workers' compensation insurance. This coverage is afforded under Part Two of the standard workers' compensation insurance policy. Employers' liability insurance may cover claims by a pregnant employee who, for some reason, is not covered by workers' compensation insurance. It also may provide coverage for bodily injury claims by family members who are injured as a consequence of injury to the employee.
  • May a non-symptomatic pregnant employee refuse to come to work?
    Some pregnant employees may be afraid to come to work for fear of contracting the virus. Nonprofits should inform their employees that the virus is predominantly spread through mosquito bites, not through air, water, or casual human contact with other workers in the office. Even if a pregnant employee works closely with a co-worker infected with the Zika virus, it appears that there is no risk of contracting the virus at work short of sexual contact with an infected employee. If an employee still refuses to come to work, the nonprofit should consult legal counsel. Although a healthy pregnant employee ought not to refuse to report to work for fear of contracting the Zika virus, the nonprofit might want to consider a reasonable accommodation, such as telecommuting, if the employer does so for otherwise similarly situated non-pregnant employees.

In the end, decisions that implicate the health of employees and their babies are personal and must be addressed on a case-by-case basis. Employers can help their affected employees, and ultimately their organizations, by providing the best-available public-health information to enable employees to make well-informed judgments.

Zika may present an issue for nonprofit employers and their employees facing international travel. Non-pregnant employees are free to travel, but should follow CDC guidelines for preventing mosquito bites while traveling in Zika-infested areas.

Currently, the CDC's travel guidelines recommend that pregnant women postpone traveling to regions where local transmission of the Zika virus is common. Employers should advise pregnant employees of the CDC's recommendation. Should a pregnant employee resist such a postponement, the organization should consult legal counsel.

Like the Ebola virus, the Zika virus will not be the last global-infectious disease crisis for U.S.-based nonprofit employers to consider. Prudence and sound risk management dictate being able to apply the best-available public-health information to the workplace, providing employees with access to that information, and making prudent decisions accordingly on a case-by-case basis.