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Zika Virus: Protect Your Employees Without Falling into Title VII Pitfalls

Recent international headlines about the Zika virus have caused human resources managers in the United States to express concerns about employees who travel to countries, notably Brazil and other countries in Latin America, where there could be a risk of exposure. (To date, the only cases of infection in the United States have been in persons who had traveled in Latin America.) Approximately 20 percent of individuals bitten by an infected mosquito suffer rashes, fevers, joint pain and conjunctivitis. While the disease is typically not fatal, infants who contract Zika in utero—via their mother’s infection—can suffer severe developmental issues such as microcephaly and brain defects.

Employers should first consider the likelihood that any of their employees would contract Zika while traveling for work to countries where there is a risk of exposure. In fact, many media companies are confronting this very issue as they send thousands of American reporters and support staff to the Olympic Games in Rio de Janeiro, Brazil this summer. The reality, however, is that any multi-national company that does business in countries where there have been cases of exposure needs to be thinking about the risk that this poses to its employees’ health. 

If an employer determines that it may be exposing its employees to Zika, it should consider a full spectrum of potential solutions. The Occupational Safety and Health Administration (“OSHA”) has recently published interim guidance on the subject,1 and recommends that employers consider allowing employees to opt-out of assignments that could expose them to Zika. The OSHA guidance further provides common-sense steps to minimize the risks of mosquito bites for those employees assigned to Zika-affected locales.

Employers should give particular care to how they approach the topic with pregnant employees because Zika poses a high risk to pregnant women and their infants. On the other hand, pregnancy is a protected condition under Title VII and policies that treat pregnant women differently may be discriminatory under the law. It should go without saying that an employer should not terminate pregnant women for refusing to take assignments that could expose them to Zika. But it also may be inappropriate to prohibit certain assignments to pregnant employees who want to travel to areas affected by the Zika outbreak. The better approach is to inform all potentially affected employees of the risks attendant with Zika and to provide, at least to pregnant employees, the chance to opt-out of assignments with Zika risks.

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This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.