The number of Zika cases being reported in the United States and its territories continues to rise. Such cases were recently reported in Michigan (Ingham County and Monroe County). For these reasons, it is prudent for Michigan businesses to understand their obligations and precautions that may be taken to limit Zika related risks in the workplace.
In this regard, the Occupational Safety and Health Administration (OSHA) issued an interim guidance report providing employers and workers with information and advice on preventing occupational exposure to the mosquito-borne Zika virus. See OSHA’s Interim Guidance Report.
OSHA Recommendations are not new regulations.
At the outset, it is important to note that the OSHA recommendations are not a regulation. Thus, they do not create new legal obligations. Instead, they are only recommendations to promote a safe workplace relative to the Zika virus.
Because mosquitos are central in the transmission of Zika, the dangers of contracting it are of high concern for employees working outside (think landscaping, construction workers, oil and gas line inspectors, etc.). Accordingly, employers should eliminate sources of standing water to reduce areas where mosquitos can breed. Examples include eliminating water sources associated with barrels, containers, inside of tires, or buckets.
Employees should also be encouraged to wear clothing that covers hands, arms, legs, and other exposed skin. For employees whose job duties take them outside, it may be advisable to wear mosquito netting to protect the face and neck. If your company has an outdoor/construction zone dress code that includes long sleeves and pants, it should also be strictly enforced to reduce the risk of mosquito bites. Additionally, it is important to use insect repellents.
Employees and Pregnancy.
For employees who are or may become pregnant, including males if their sexual partner is or may become pregnant, they should understand the virus and pregnancy. Start with the Centers for Disease Control and Prevention (CDC). If these employees have any outdoor work assignments or will be traveling to areas heavily infected with Zika, they should consider discussing the situation with their supervisors. Depending upon the circumstances, this may create obligations for both employees and employers for discussing whether any reasonable accommodations may be available as a precautionary measure or as may be required under the Americans with Disabilities Act.
Good Intentions Don’t Excuse Employment Discrimination
According to the CDC, if a pregnant woman is infected with the virus, Zika may result in health concerns for both the mother and fetus as well as birth defects in the fetus. However, employers cannot prevent a pregnant woman from doing particular work in an effort to reduce her chances of being infected by Zika and harming herself and her baby. Such actions may create a potential sex discrimination claim.
Specifically in a 1991 U.S. Supreme Court decision, United Automobile Workers v. Johnson Controls (1991), a company restricted its female employees without medically documented infertility from engaging in work tasks that involved exposure to lead levels that exceeded those deemed safe by the OSHA to protect them and their future babies. While the company believed it was looking out for the safety of its employees, the Supreme Court decided in a unanimous decision that the company discriminated on the basis of sex because the condition of being a woman did not interfere with one’s ability to perform the essential tasks of the job properly. More recently, in July 2016 the EEOC announced that it sued a North Carolina company for similar actions. See coverage of this suit by attorney Jon Hyman’s blog post, Paternalism vs. pregnancy discrimination.
For more information about employment law compliance and best practices for your workplace, contact employment attorney Jason Shinn. Since 2001, Mr. Shinn has worked with manufacturers and other businesses when it comes to federal and Michigan employment law compliance in all phases of the business – from hiring to firing, as well as workplace investigations.