Employee travel and Zika: What’s your liability risk?

By Tina Irgang

The sudden appearance of Zika in Latin America and its possible link to a devastating birth defect have understandably caused panic among many adults of reproductive age. But as a company doing business in Zika-affected areas, what precautions should you take to protect employees?

For now, the Centers for Disease Control and Prevention (CDC) recommend that pregnant women postpone travel to areas where Zika is common.

However, there is a sticking point for businesses whose first instinct is to ban travel: If you decide to forbid female — or even just pregnant — employees from traveling to Latin America, it could be construed as gender discrimination, according to the Society for Human Resource Management (SHRM). Companies are free to suggest postponing travel and to warn employees of the possible risks, but any actual prohibition on business travel to the region would have to apply equally to all employees, SHRM’s article goes on to say.

Also bear in mind that it would be illegal for you to try to ascertain whether employees or their partners are planning to become pregnant, SHRM notes.

So does a blanket ban make sense? Here are the facts:

  • A link between Zika and the birth defect microcephaly is likely, based on a strong surge in the defect in Brazil a few months after the Zika virus first appeared there in May 2015, according to the New York Times. Microcephaly causes abnormally small heads and severe intellectual disabilities in affected infants. “It may be that other factors, such as simultaneous infection with other viruses, are contributing to the rise; investigators may even find that Zika virus is not the main cause,” the article goes on to say. However, the simultaneous appearance of Zika and the microcephaly surge is highly suggestive of a correlation.
  • Zika has been found in saliva, but it’s not clear whether the virus can actually be transmitted that way, according to Vox
  • Sexual transmission of Zika is “thought to be rare, but plausible,” reports Vox. With the science still evolving, the CDC has issued interim guidance suggesting the use of condoms for couples who are currently expecting or are planning a pregnancy, if the male partner has travelled to Zika-affected areas.

Given those facts, what’s the common-sense (and legal) approach to business travel? “Employers should make sure all workers whose job duties may take them to areas that the CDC has identified as at-risk are educated on the Zika virus’s symptoms and modes of transmission, as well as on the precautions they should take to avoid mosquitoes and the risk of infection,” SHRM suggests.

What if some employees have travelled to Latin America and pregnant colleagues are concerned about transmission once the employees have returned?

There is no quarantine currently on travellers returning from Zika-affected areas, notes employee safety publication EHS Today. Also, since there is no evidence that casual person-to-person contact can lead to Zika transmission, you cannot require returning employees to undergo a medical examination, EHS Today says.

Finally, what if a pregnant employee does contract Zika and give birth to a microcephalic infant? Could you be held liable? The Supreme Court had this to say in a past case regarding harm to unborn children of employees, according to EHS Today: “[I]f the employer fully informs the woman of the risk, and the employer has not acted negligently, the basis for holding an employer liable seems remote at best.”

So here’s the bottom line: Don’t overreact by instituting a travel ban, but make sure all employees are well aware of the risks.

Tina Irgang is the production editor for SmartCEO. Contact her at tina@smartceo.com.