Why Address Zika at the Workplace? Here Are 3 Pricey Reasons

By now, most everyone in the United States has heard of the Zika virus as it has spread throughout South America, Central America, the Caribbean –and now, the U.S.  There are three very good reasons why employers in America should be concerned with Zika and why they should act accordingly.

Current State of the Problem

Virtually all Zika cases in the United States are currently the result of people traveling to areas of the world with a Zika virus outbreak, getting infected, and bringing the virus back to the United States.  Laboratory-confirmed Zika disease cases are currently present in all but three states in the U.S. –Alaska, South Dakota and Wyoming, according to the Centers for Disease Control (CDC).

The most common way for Zika to be spread, according to the CDC, is through mosquito transmission.  However, the virus can also be spread through sexual contact or by exposure to blood and other bodily fluids.

The Zika problem is spreading and is expected to get worse in the coming months –at least until a vaccine can be developed.  In January of this year, the first Zika-related microcephaly case was reported in the United States in Hawaii, when a baby infected as a fetus by her mother was born with an extremely small head.

There were two reported Zika-related deaths in the United States, according to the CDC.  An elderly Utah man died from health complications compounded by the Zika virus in June.  The man reportedly traveled to an area with a widespread Zika outbreak just before contracting the disease.  The second death, according to the Associated Press, involved a woman who traveled to El Salvador while pregnant, returned to Texas and gave birth to a baby infected with the Zika virus.  The baby died shortly after birth in late July.

In June of this year, the CDC issued a first-ever travel advisory for the United States.  The Miami, Florida area was tagged with a travel advisory due to an outbreak of Zika infections.

3 Reasons Employers Should Be Concerned About Zika

If recent news about infections, birth defects and even death associated with the ever-spreading Zika virus isn’t enough for employers to implement hazard controls, here are three potentially pricey reasons why employers should address the Zika hazard to protect workers.

1. OSHA’s General Duty Clause

OSHA’s “General Duty Clause” (Section 5(1)(1)) of the Occupational Safety & Health Act requires employers to protect workers from “recognized hazards” to safety and/or health, which may cause serious injury or health.  OSHA uses the General Duty Clause to cite and financially penalized employers for safety and health violations that are not specifically found in the Code of Federal Regulations.

OSHA has the authority to reference other nationally recognized consensus standards or other authoritative sources.  In cases potentially related to Zika, OSHA would likely rely on recommendations issued by its own website, the CDC, the National Institute for Occupational Safety and Health (NIOSH), the World Health Organization (WHO), or other similar resources.

Not developing a hazard assessment of the potential exposure to the Zika virus and subsequent control strategies would likely warrant the issuance of one or more Serious violation citations from OSHA, which could cost the employer up to $12,471 per citation.

2. Whistleblower Protection

Employers are prohibited from retaliating against employees who raise various “protected” concerns or provide “protected” information to the employer or the government.

A worker who travels to Zika-infected regions of the world, or who regularly works outdoors, may refuse to work due to a reasonable probability of the disease at the workplace.  According to the Occupational Safety & Health Act, Section 11(c), the worker making the complaint is engaging in “protected activity” and is not subject to adverse action by the employer, at least until the employer can present “objective evidence” to establish there is no hazard, or that the employer has developed a response plan that will reasonably protect the worker from exposure to the disease.

In June of this year, the US Department of Labor (DOL) filed suit against two Houston companies that (allegedly) illegally retaliated against (fired) workers who reported unsafe work conditions.  The DOL is asking the judge to issue a permanent injunction prohibiting the defendants from taking any further retaliation action against workers who raise safety or health concerns.  The lawsuits also seek back pay, reinstatement and other damages allegedly suffered by workers for being illegally terminated.

3. Multi-Employer Worksites

Employers may have additional legal obligations to workers of another employer (like a subcontractor or service company) who may be performing work at the host employer’s workplace and exposed to recognized hazards (such as potential exposure to mosquitos carrying the Zika virus).

OSHA can and does issue citations and penalties to exposing employers whose workers are exposed to the hazard, as well as the host employer (also known as “Controlling Employer”) who hired the exposed workers through a different employer.

OSHA references the Multi-Employer Worksite Doctrine to penalize both the exposing employer and the controlling employer.  Under this doctrine, OSHA can issue citations to the exposing employer and the controlling (host) employer if workers are exposed to the virus.  The controlling employer at the site will ultimately be held responsible for correcting the hazard.

Interestingly, OSHA does not use the Multi-Employer Worksite Doctrine in Texas, Mississippi or Louisiana due to a ruling by the U.S. Court of Appeals for the Fifth Circuit.  Host employers in these states shouldn’t consider this ruling carte blanche because OSHA has effective methods of pursuing host employers without the more convenient Multi-Employer Worksite Doctrine.

What Should Employers Do About Zika Exposures?

The employer has a responsibility of providing a workplace free of recognized physical or health hazards, including exposure to the Zika virus.  This is particularly important for workers that are pregnant, want to become pregnant, or who are romantically involved with someone who is pregnant or wants to be pregnant, when they travel to areas of the world with Zika-related outbreaks or who regularly work outdoors in areas with Zika exposure.

As an employer (including employment of workers through other agencies), it is recommended to do the following:

• Train workers about the symptoms of Zika infection
• Train workers how to protect themselves from Zika infection
• Instruct workers about the importance of, and methods to, eliminate areas at the workplace where mosquitoes breed
• Provide insect repellents and protective clothing for exposed skin, and encourage their use

Ensure all training is documented and periodically confirm any new procedures are being followed.  Further information regarding Zika and methods to control exposure can be found at these websites:

• OSHA – osha.gov
• Center for Disease Control – cdc.gov/zika/
• World Health Organization – who.int/mediacentre/factsheets/zika/en/
• US Department of Health & Human Services – hhs.gov/blog/2016/01/28/zika-101.html

Safety First Consulting helps businesses identify OSHA compliance issues in their workplaces, manage their safety programs, and we become accountable for the results.  In addition to offering custom written safety programs for companies, Safety First Consulting provides required safety training, industrial hygiene sampling, noise sampling, and workplace inspections.  See our list of Services.