The XX Factor

Could Employers Be Liable for Forcing Workers to Travel to Zika-Afflicted Zones?

Today show host Savannah Guthrie opted out of a work trip to cover the Rio Olympics after announcing her pregnancy.

Bryan Bedder/Getty Images for Estee Lauder

As doctors in the southern U.S. prepare their patients for the expected onset of the Zika virus, employers and employees are considering the health and legal risks posed by work travel to afflicted areas.

Employees in the early weeks of pregnancy and those considering becoming pregnant might have valid concerns about traveling to countries beset by the mosquito-borne virus, which can cause microcephaly and other birth defects in developing fetuses. But they may not be ready or willing to share their plans for children with their supervisors. And employers might want to do right by their employees and avoid potential lawsuits by exempting employees of reproductive age from traveling to Zika zones, but that would violate laws preventing gender and pregnancy discrimination.

The Huffington Post reports one anecdote of a pregnant woman whose employer wanted to send her to Brazil for an April meeting; she didn’t want to reveal that she was expecting, so she decided to say that she was trying to conceive and didn’t want to put herself or her potential child at risk. Her manager was understanding, as were executives at NBC, whose star Today show host Savannah Guthrie opted out of the network’s Olympics coverage in Rio de Janeiro when she announced that she was pregnant.

The Supreme Court’s 1991 opinion in Automobile Workers v. Johnson Controls, Inc. held that, under the Civil Rights Act of 1964, employers cannot prohibit or fire women from jobs that may harm their reproductive health. As long as employers inform women of the risks inherent in their work, and avoid negligent actions, they can’t be held liable for any negative outcomes on fetal health. As for the threat of Zika, employers should seek volunteers among qualified employees for necessary travel to Zika-afflicted areas and let people decide for themselves whether they’re willing to take the chance. Employers should inform all employees of Zika risks, not just men or women of reproductive age, since the virus can be spread through sexual contact to partners who may be expecting or trying to get pregnant.

The Occupational Safety and Health Act allows any employee to refuse a work assignment if she or he believes that there’s a significant risk of death or injury. But since Zika is a preventable public health threat and not a workplace hazard, some may choose to force employees to travel to an affected region (or work outside if they already live in a Zika-afflicted area) unless the employee is openly pregnant; in that case, she may be protected under laws that require employers to make reasonable accommodations for pregnant workers. If employers do force their workers to do risky work in a Zika zone, they may open themselves up to negligence suits, and those workers may be able to claim worker’s compensation if any harm comes to them or their fetuses.

To protect themselves and their workers, employers should provide employees based in Zika-afflicted areas with long clothing and mosquito repellent if they work outside. But since most people whose employers pay for them to travel for work will have access to accommodations with air conditioning, keeping them safe from the open windows and doors that let Zika-carrying mosquitoes in, providing information about risks and prevention to all employees is the best move. Despite heavy media attention over the past few months, a Kaiser Family Foundation poll released Thursday found that just 13 percent of Americans understand Zika’s threats to adult health, which are amplified in older people and those with compromised immune systems, and only half know that Zika can be transmitted sexually. Just 6 in 10 know that the virus can cause birth defects in fetuses carried by infected women. Without proper information, employees who might be fine taking a measured risk won’t know to protect themselves and their pregnancies from potential harm.