|
 Since Zika was detected in Brazil last year, the mosquito-borne
virus has spread to 33 countries, most of them in the Americas.
The World Health Organization declared an international health
emergency because of strong suspicions that infections in pregnant
women may cause microcephaly, a condition in which infants are born
with abnormally small heads and can suffer developmental problems.
While the virus had typically caused mild symptoms in adults, it
also has been linked to an autoimmune disorder called Guillain-Barre
syndrome that can cause paralysis.
U.S. and world health authorities are not currently warning against
all travel to affected areas, as they did with the 2014 Ebola
outbreak in West Africa. They are, however, advising pregnant women
to consider postponing travel, and all travelers to take precautions
to avoid mosquito bites. Adherence to the recommendations of the
U.S. Department of State or the World Health Organization would
shield companies to a large degree from claims they acted recklessly
in sending employees into Zika-affected areas, lawyers who typically
represent employers say.
The U.S. Centers for Disease Control and Prevention (CDC) further
recommends that travelers wear insect repellent and sleep with
mosquito nets in places where they might be bitten, among other
measures.
"Your defense to any sort of claim is that you follow the public
health guidance," said Mark Lies, a lawyer with the firm Seyfarth
Shaw, which specializes in advising companies on employment issues.
Such advisories also mean workers probably would not be protected
from termination if they refuse to go to an affected area, lawyers
said. While the federal Occupational Safety and Health Act gives
workers the right to refuse dangerous tasks, those tasks must pose
an immediate risk of death or serious injury.
Something like working with a "defective tool that has electrical
sparks coming out of it" would meet that standard, said Ben Huggett
of Littler, another employment law firm. Traveling to a Zika-affected
area, on the other hand, would probably not, he said.
Lies said upgraded warnings in the event Zika proves more lethal or
virulent could give workers more of a right to refuse travel. But he
said OSHA affords no special protection for pregnant women under
current threat levels. The law governs only the safety of employees,
not any unborn children they may be carrying.
If employees contract Zika while traveling on the job, any immediate
harm they suffer would be covered by worker's compensation
insurance, a form of no-fault insurance that applies to injuries
suffered on the job. Virtually all states require employers to
obtain worker's compensation insurance and mandate that it be the
sole remedy for workplace injuries.
Worker's compensation covers lost wages and medical care but awards
are typically smaller than private lawsuits, which can seek to
recover damages for pain and suffering, as well as punitive damages
for negligence.
[to top of second column] |
Whether worker's compensation would cover any purported Zika-related
injuries in an employee's baby is less clear. Huggett said that a
fetal injury might be covered as being derivative of the mother's
injury.
Huggett said he was unaware of any case that directly addressed
worker's compensation for a fetus harmed by an infectious disease.
"It's really an open question," he said.
Lies said he did not believe worker's compensation would generally
cover injury to a fetus but thought it could open the door for an
employee to bring a lawsuit against her employer for negligence.
"If someone is pregnant, or trying to get pregnant, or could get
pregnant, you could have a case," said Katherine Dudley Helms, a
lawyer with employment law firm Ogletree Deakins.
Many states limit worker's compensation to several years' pay, while
a damage award for a severely impaired child could reach tens of
millions of dollars, according to Michael Jones, an employment
lawyer with Reed Smith.
Michael Gerson of California firm Boxer & Gerson, who brings claims
on behalf of employees, said such a case would still be a challenge
if the company followed official warnings. The evidence would have
to show “that the mother was never given adequate warning to protect
herself as she was going into this type of environment,” he said.
But Jones said such cases would be tough for the employer too. "I
would be concerned if I sent an employee to a high risk region," he
said. "If that claim gets in front of a jury, you're going to be
looking at a very sympathetic plaintiff."
Reuters reported last week that several international airlines are
allowing flight crew members who are or may become pregnant to
request reassignment to routes that avoid Zika-affected areas.
A spokeswoman for one of the airlines, American, declined to comment
on possible legal liability requiring such travel could have
created, saying the company's policy was motivated by concern for
employees' well-being.
United and Delta, which have also offered to reassign their
employees, could not immediately be reached.
(Reporting By Brendan Pierson in New York, Editing by Anthony Lin
and Lisa Girion)
[© 2016 Thomson Reuters. All rights
reserved.] Copyright 2016 Reuters. All rights reserved. This material may not be published,
broadcast, rewritten or redistributed. |
