By Mark A. Lies, II,  Adam R. Young, and Daniel R. Birnbaum

Seyfarth Synopsis:  The flu and cold season is now approaching. Employers face concerns about how to respond to highly infectious diseases when an employee reports such illness. Seasonal illnesses have the potential to infect employees and shut down operations because of employee absence due to illness. Employers must consider methods to keep their employees healthy and productive while not running into legal pitfalls.

With the return to winter weather, the cold and flu season is once again upon us.  This creates challenges for employers. Seasonal illnesses have the potential to spread throughout the workforce, and negatively impact operations.  Companies should create a plan to respond to infectious diseases, including how to limit the spread of the disease within the workplace without violating any applicable laws or regulations.  Employers should also encourage employees to get flu shots and practice good hygiene at work.  Please click on this article for more detailed guidance for employers on dealing with infectious diseases during flu and cold season.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team or the Workplace Policies and Handbooks Team.

By Brent I. Clark, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The Centers for Disease Control and Prevention’s (CDC) recent report indicates that vector-borne diseases are a rising causes of illness for outdoor workers in the United States.  Vital Signs: Trends in Reported Vectorborne Disease Cases — United States and Territories, 2004–2016 (May 4, 2018).  As summer approaches, employers in the construction, landscaping, outdoor hospitality, and other outdoor industries should take steps to inform and protect their workers from vector-borne disease.

In its report, the CDC found that the most common vector-borne pathogens in the United States are transmitted by ticks or mosquitoes, including those causing Lyme disease, Rocky Mountain spotted fever, and West Nile, dengue, and Zika virus diseases.  This CDC report examined trends in nationally reportable vector-borne diseases between 2004–2016. We have previously written about Zika, including, Zika – Employer Liability Issues and Zika Virus Spreading to United States: OSHA Provides Recommendations.

Due to the outdoor nature of certain types of work, such as construction, landscaping, and outdoor hospitality work such as at golf courses and pools, employers should be mindful of informing their employees on how to protect themselves from vector-borne diseases, how to recognize the symptoms of vector-borne diseases, and what to do if they believe they have contracted a vectorborne disease.

According to the CDC, the following diseases are currently reported as being transmitted somewhere in the United States, including Puerto Rico, the U.S. Virgin Islands, and American Samoa:

  • Lyme disease;
  • West Nile, dengue and Zika virus diseases;
  • Plague (Yersinia pestis); and
  • Spotted fever rickettsioses.

CDC notes that malaria and yellow fever are no longer transmitted in the United States but have the potential to be reintroduced.

The Occupational Safety and Health Administration (OSHA) provides limited guidance (Lyme Disease, Zika) for employers in the construction or outdoor-services industries. However, this guidance is generally applicable to help prevent any vector-borne disease:

  • Avoid brushy, overgrown grassy, and wooded habitats;
  • Remove leaves, tall grass, and brush from areas surrounding work areas or residential areas, thereby reducing tick, deer, and rodent habitat;
  • 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;
  • Wear long-sleeved shirts and tucking pant legs into socks or boots to prevent ticks and mosquitos from reaching the skin;
  • Wear high boots or closed shoes that cover the entire foot;
  • Wear a hat with mosquito netting;
  • Spray insect repellents (containing DEET) on exposed skin, excluding the face. Use permethrin on clothes to kill ticks on contact) (don’t forget hazard communication training);
  • Wear light-colored clothing so that ticks can be more easily seen and removed before attachment occurs;
  • Check the body carefully for ticks or mosquito bites; if ticks are found, promptly removing them with tweezers. (DO NOT use petroleum jelly, a hot match, nail polish, or other products to remove the tick).

According to the CDC, between 2004-2016, a total 642,602 cases of vector-borne diseases were reported.  During this time, tick-borne bacterial and protozoan diseases more than doubled, from over 22,000 in 2004 to over 48,000 in 2016. Lyme disease accounted for 82% of all tick-borne disease reported across the continental United States. Mosquito-transmission in Puerto Rico, the U.S. Virgin Islands, and American Samoa accounted for most reports of dengue, chikungunya, and Zika virus diseases, while West Nile virus, transmitted by mosquito, was reported across the continental United States.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Benjamin D. Briggs and Adam R. Young

Mosquito sucking blood from people.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.