09 Feb 2016

Law of little help shielding US business travellers from Zika virus

Lawyers have warned that employees at US companies lack legal avenues to refuse to travel to areas affected by the Zika virus or to sue their employers if they fall ill.


The Zika virus has spread to 33 countries since it was first detected in Brazil last year, prompting the World Health Organisation to declare the virus an international health emergency. The majority of affected countries are located in the Americas. However, neither the US State Department nor the World Health Organisation have issued formal advice against travel to affected areas as they did with the 2014 Ebola outbreak in West Africa. Without such advice, lawyers are concerned that employees at US-based companies have few legal avenues through which to refuse to travel to affected areas if such travel is required by their employers, or to seek legal recourse if they contract the virus.

Defining dangerous

The US federal Occupational Health and Safety Act grants employees the right to refuse to undertake work tasks without fear of termination if the task poses an immediate risk of death of serious injury. However, Seyfarth Shaw employment lawyer Mark Lies warns that travelling to areas where the Zika virus is active may struggle to fit the bill for a 'dangerous activity' without formal guidance from the US State Department or WHO. By consequence, employees who refuse travel may be left vulnerable to termination, while employees who travel for business and then fall ill will struggle to sue their employers. 'Your defence in any sort of claim is that you follow public health guidance,' says Mr Lies.

Pregnancy risks

Though symptoms of the Zika virus are relatively benign in most adults, the virus poses a far more serious threat to pregnant women as it is believed to cause microcephaly in unborn fetuses. Despite the risks, even pregnant employees will be insufficiently protected by the OHSA as the law covers only employees and not their unborn children. However, companies may still be vulnerable, if not to workers' compensation claims, then to negligence lawsuits in the case of fetal injury. 'If someone is pregnant, or trying to get pregnant, or could get pregnant, then you could have a case,' commented lawyer Katherine Dudley Helms of firm Ogletree Deakins. Source: Reuters UK; EHS Today