Zika Virus and the Legal Issues With an Employee’s Refusal to Work

It’s big news! On February 1, 2016, the World Health Organization (WHO) issued a statement declaring Zika virus to be a “Public Health Emergency of International Concern.” The WHO did not find a public health justification for restrictions on travel or trade to prevent the spread of Zika virus and stated that at present, the most important protective measures are the control of mosquito populations and the prevention of mosquito bites in at-risk individuals, especially pregnant women. The WHO estimates 3 million to 4 million people across the Americas will be infected with the virus in the next year. The extensive media coverage and a suspected link between pregnant women infected with Zika virus and a serious but rare birth defect in their babies has raised significant concerns for everyone, including employers.

This blog post will answer basic questions about the Zika virus and then address specific legal issues for employers in the United States dealing with employees concerned about the Zika virus.

Where does Zika virus occur?

According to the WHO, Zika virus was discovered in 1947 and occurs in tropical areas with large mosquito populations in Africa, the Americas (including the Caribbean), Southern Asia and the Western Pacific.

What are the symptoms of Zika virus?

According to the WHO, Zika virus usually causes mild illness, with symptoms appearing a few days after a person is bitten by an infected mosquito. Most people with Zika virus disease will get a slight fever and a rash. Others may also get conjunctivitis, experience muscle and joint pain, and feel tired. The symptoms usually abate in two to seven days.

The WHO has also stated that experts agree that a causal relationship between Zika infection during pregnancy and microcephaly is strongly suspected, though not yet scientifically proven.

Can an employee refuse to come to work or travel for work to avoid exposure to Zika Virus?

The spread of Zika virus implicates a number of federal laws, including the Family and Medical Leave Act (FMLA), the Occupational Safety and Health Act (OSH Act), and the National Labor Relations Act (NLRA).

Under the FMLA, eligible employees incapacitated by a serious health condition (which may or may not be the case with an individual with the Zika virus), or who are needed to care for covered family members incapacitated by a serious health condition, are entitled to up to 12 weeks of leave. Thus, any leave taken by an employee to avoid exposure to Zika virus would not be protected under the FMLA.

Under the federal OSH Act regulations, if an employee has no “reasonable alternative” and “refuses in good faith to expose himself to a dangerous condition,” then the employer is prohibited from discriminating against the employee. The dangerous condition must be one that would cause “a reasonable person, under the circumstances then confronting the employee, [to] conclude that there is a real danger of death or serious injury.”  Also, OSH Act’s General Duty Clause requires employers to maintain a workplace that is “free from recognized hazards” that may cause serious injury or death. An employer’s obligations under the General Duty Clause depend upon, and change with, the circumstances. A nonpregnant person refusing to work or travel because of fear of exposure to Zika virus would not be protected by the Occupational Safety and Health Administration (OSHA), although a pregnant woman may arguably be protected under the OSH Act.

The NLRA may provide the most legal protection for an employee refusing to work because of fear of exposure to the Zika virus. In order to be protected under the NLRA, an employee’s refusal to work based on concerns about safety and health (in the NLRA world this is a “strike”) must be “concerted protected activity.” There is a fairly low threshold to satisfy the NLRA’s “concerted” requirement for safety and health concerns. The strike also must be “protected.”

The NLRA includes a reasonableness “option,” though not a requirement. Unlike the OSH Act, the NLRA does not require an individual to have a “reasonable” belief that a situation is unsafe to refuse to work—i.e., there is no mandatory “reasonableness” requirement for a strike based on safety issues or concerns.  However, if the employee’s belief is reasonable, the NLRA places additional restrictions on the employer: An employer may not replace strikers who satisfy this “reasonable belief” element.

All of these legal issues are important if defending a claim after the fact, but the prudent employer should be proactive to prevent claims. Given the significant media attention surrounding the spread of the Zika virus and the practical reality that the spread of the virus may pose a threat to one’s child, employers should treat any request for leave due to fear of exposure seriously and take action to educate, counsel, and maintain flexibility with employees.