By Benjamin D. Briggs and Adam R. Young

Seyfarth Synopsis: OSHA Interim Guidance recommends that all employers develop and implement policies to deal with Zika virus.

What is Zika?

The Zika virus disease (Zika) primarily is spread through the bites of infected mosquitoes.  The most common symptoms of Zika are fever, rash, joint pain, and conjunctivitis (red eyes).  While some cases of Zika have occasionally been severe, infected people rarely go to the hospital or die from Zika.  For this reason, many people might not realize they have been infected.  An individual’s symptoms may appear anywhere from 2 to 7 days after exposure to the virus.

Where is Zika Being Transmitted?

According to the CDC, Zika has been reported throughout South America, Central America, and the Caribbean. Mosquito-born Zika cases have been reported in United States territories, while hundreds of reports cases in the continental United States mostly have been limited to travel-borne sources. Zika may be sexually transmitted or passed to a baby around the time of its birth.  The Zika virus has been documented to result in injuries to fetuses, resulting in severe birth defects such as microcephaly. Federal agencies warn that mosquitoes in the Continental United States will become infected with and spread Zika, and travel-associated Zika infections in U.S. states may result in the local spread of the virus.

OSHA Interim Guidance and Recommendations

We had recently issued a Management Alert on Zika – Employer Liability Issues. On April 22, 2016, the federal Occupational Safety and Health Administration, along with the National Institute for Occupational Safety and Healthy, released an Interim Guidance for Protecting Workers from Occupational Exposure to Zika Virus (OSHA – DTSEM FS-3855). The Interim Guidance provides recommendations for employers on issues related to Zika, including hazard communication, employee clothing, and the proper use of insect repellants.  Compliance with these recommendations is voluntary, as they are not formal OSHA standards.  However, employers should review these recommendations and adjust polices accordingly.

Outdoor Workers

For outdoor workers, OSHA recommends:

• Inform workers about their risks of exposure to Zika through mosquito bites and train them how to protect themselves. Check the CDC Zika website to find Zika-affected areas.
• Provide insect repellents and encourage their use.
• Provide workers with, and encourage them to wear, clothing that covers their hands, arms, legs, and other exposed skin. Consider providing workers with hats with mosquito netting to protect the face and neck.
• In warm weather, encourage workers to wear lightweight, loose-fitting clothing. This type of clothing protects workers against the sun’s harmful rays and provides a barrier to mosquitoes. Always provide workers with adequate water, rest and shade, and monitor workers for signs and symptoms of heat illness.
• Eliminate sources of standing water (e.g., tires, buckets, cans, bottles, barrels) whenever possible to reduce or eliminate mosquito breeding areas. Train workers about the importance of eliminating areas where mosquitos can breed at the worksite.
• If requested by a worker, consider reassigning anyone who indicates she is or may become pregnant, or who is male and has a sexual partner who is or may become pregnant, to indoor tasks to reduce their risk of mosquito bites.

The Interim Guidance provides specific recommendations for health care workers, laboratory workers, and workers who specialize in mosquito control.

Dealing with Infected Employees

When any employees are suspected or confirmed to be infected with Zika , OSHA recommends that employers:

• Ensure that supervisors and all potentially exposed workers are aware of the symptoms of Zika.
• Train workers to seek medical evaluation if they develop symptoms of Zika.
• Assure that workers receive prompt and appropriate medical evaluation and follow-up after a suspected exposure to Zika.
• If the exposure falls under OSHA’s BBP standard (29 CFR 1910.1030), employers must comply with medical evaluation and follow-up requirements in the standard. See 29 CFR 1910.1030(f).
• Consider options for granting sick leave during the infectious period. The CDC describes steps employers and employees can take to protect others during the first week of Zika illness.

Employee Travel to Zika-infected Areas

OSHA’s Interim Guidance provides recommendations for dealing with employee travel to areas experiencing Zika outbreaks:

• Review the CDC guidance prior to assigning travel.
• Consider allowing flexibility in required travel for workers who are concerned about Zika virus exposure. Flexible travel and leave policies may help control the spread of Zika virus, including to workers who are concerned about reproductive effects potentially associated with Zika virus infection.
• Consider delaying travel to Zika-affected areas, especially for workers who are or may become pregnant or whose sexual partners may become pregnant.

Even if they do not feel sick, travelers returning to the United States from an area with Zika should take steps to prevent mosquito bites for three weeks so they do not pass Zika to mosquitoes that could spread the virus to other people.

However, employers should closely consider any travel prohibitions — restrictions on employee travel on the basis of pregnancy or gender should be closely scrutinized, as they may form the basis of a gender discrimination claim. Zika is advancing into the Continental United States and employers need to be prepared.  Employers should review these recommendations and plan accordingly.