The Zika virus: what do employers need to know and do?

The Zika virus continues to feature in headlines around the globe. The World Health Organisation has warned that the virus could ‘spread explosively’. 

Businesses whose work includes travel to affected countries will be those principally concerned with how they should deal with employee-related issues in relation to the virus. However, all employers may be concerned about the health of those employees who choose to travel to affected areas outside of work; and Zika also raises a number of sensitive issues that will need to be handled carefully in the employment arena to avoid legal risks and to alleviate potential employee concerns.

What is the Zika virus?

Zika is a tropical disease, which can cause a number of mild illnesses. However, of great concern is the potential impact that the virus can have on pregnant women. There is increasing evidence to suggest that the virus can result in microcephaly, a condition that results in babies being born with abnormally small heads and brain damage.

Currently, the Zika virus has been reported as active in at least 30 countries, including Barbados, Cape Verde, the Dominican Republic and Mexico. One of the areas of greatest concern is Brazil, which is due to host the Olympics in August 2016, with many thousands of tourists expected to travel to the event. 

The Zika virus is transmitted by Aedes mosquitoes, which are not resident in the UK. The virus cannot be caught through day-to-day contact with colleagues in the workplace, so UK employees are principally at risk if they travel to one of the affected areas.

What are the concerns for employers?

Employers have statutory duties to ensure the health and safety of employees whilst at work and to identify risks, assess them and reduce them to the lowest practicable level. Whilst available information on the Zika virus suggests exposure risk is limited to those visiting affected countries (and being bitten by a mosquito), as opposed to the virus then being contagious on a person’s return, we consider key concerns for employers to be:

1. Risks to any employee required to travel to an affected region for work purposes, particularly any female employees who could be pregnant.

2. The potential for employees travelling to Zika-infected areas to become ill on their return to work.

It goes without saying that an employer will not wish any employee to be put at risk of contracting the Zika virus whilst at work. However, it is also important for businesses to understand their legal obligations and risks in this area. Failure by a business to properly identify employees at risk and put in place adequate measures to eradicate or reduce risk to the lowest practicable levels could trigger civil action or in the most serious cases, regulatory investigation and prosecution in the criminal court.

To address these concerns, we recommend that employers with staff travelling to affected areas consider the following:

1. Can an employer prevent an employee from travelling to an affected area? 

In relation to work travel, employers may well be able to prevent employees travelling to affected areas, although this is clearly an issue that will need to be handled carefully and will include a risk assessment. Based on information available, this may result in prohibitions on female pregnant employees travelling or wider measures giving all employees, particularly female employees, the option not to travel.

Employers should, of course, consider that many female employees will not share information with them about pregnancy or their desire to become pregnant. Employers will therefore need to consider how they engage with employees about the potential risk and may wish to provide options to female staff to decline business travel to infected areas without further explanation.

Making clear the potential risks to employees and delaying travel until more is known may be a sensible approach and employers should consider engaging with their workforce to discuss the issue and think carefully about any policy to be adopted. Employers should ensure that any policy that is applied is done so fairly across the workforce and does not have an unjustifiable discriminatory impact.

From a practical perspective, it may be that interim measures may be a solution, and should be considered as part of the employer’s risk assessment. For example, is it possible for the employee to carry out their work via video conferencing?

2. If an employee becomes infected with Zika abroad and becomes ill on their return to the UK, can they be prevented from coming to work?

Current guidance on the Zika virus states that any public health risk posed by a Zika-infected person to the wider population is negligible. This, along with the apparent fact that Zika is not spread through human contact, means that the risks associated with the virus in the UK are currently considered to be extremely low.  As a result, it appears that an employer would not be justified in requiring an employee who had visited a Zika-infected region to remain at home. However, they will of course have a duty of care in relation to any employee who is actually ill as a result of a visit, including an obligation to ensure that the employee does not return to work until he or she is deemed fit to do so.

We recommend that employers keep up to date with medical information on the Zika virus and update their approach as guidance changes. Of course, it is also always open to the employer to agree with the employee that he or she will work from home or return to work only when free of the virus.

3. How should an employer respond if a UK employee refuses to travel to a Zika area for work?

If the risks posed to an employee are deemed to be low, it may be that an employer will wish to require an employee to travel to a Zika area. However, we recommend that thought is given to whether all the information is available to a business to make this decision, particularly in relation to a female employee who could be pregnant (or trying to become pregnant) and has not informed their employer of this.

Pregnant employees and those planning to become pregnant

Employers have a duty to undertake a specific risk assessment for expectant mothers under UK health and safety law. If travel forms part of the expectant mother’s work, the risk assessment should include consideration of the risks associated with contracting the Zika virus. The risk assessment should ensure that the risk is eliminated, or if this is not possible that appropriate control measures are in place to minimise the risk. This could include changing an employee’s working conditions, setting the employee different tasks or, if there is no alternative, suspension on full pay.

Current government guidance states that pregnant women should consider avoiding travel to an area where active Zika transmission is being reported. If travel is unavoidable, or they live in an area where active Zika transmission is being reported, they should take scrupulous measures to avoid mosquito bites during both daytime and night time hours (but especially during mid-morning and late afternoon to dusk, when the Aedes mosquito is most active). The guidance states that men and women who are planning a family should discuss their travel plans with their healthcare provider to assess their risk of infection and receive advice on mosquito bite avoidance measures.

Whilst employers will be reluctant to cancel important business engagements, given the recommendations on travel to affected areas issued by the government and the advice on the risks posed to expectant mothers, employers should take suitable steps to ensure that those at risk are not required to travel to affected areas. Appropriate alternatives should be considered, such as postponing the trip, conducting the engagement via phone or video link or relocating to a different meeting venue.

4. Can an employer request that an employee returning from an affected area should submit to a medical examination?

Employers cannot insist that employees submit to testing for the Zika virus unless there is a contractual right to do so. Requiring an employee to be tested without their consent would be a serious breach of trust and confidence, which could result in a claim for constructive dismissal (as well as possible liability for criminal assault). Even where such a right exists, it must be exercised reasonably and the employee would still need to consent to the testing. Given that there is currently no evidence to suggest a risk of Zika spreading from person to person in the workplace, employers are well advised not to insist on testing employees for the virus.

5. Do employees have the right to be informed if a colleague has the Zika virus?

Employees do not have the right to be advised if a colleague has the Zika virus or its symptoms. As there is currently no evidence to suggest person-to-person transmission of the virus in the workplace, an employer is very unlikely to be justified in disclosing details of any employees who have been infected.

Disclosing information about an employee’s physical health involves the processing of sensitive personal data under the Data Protection Act 1998 and therefore any disclosure must be made with strict adherence to the principles for fair and lawful processing and the eight data protection principles, including obtaining the employee’s explicit consent to the disclosure of their health information.

Practical steps

If your employees travel abroad as part of their job, we recommend that you consider taking some or all of the following steps:

• Carry out a risk assessment relating to risks associated with the Zika virus and specifically consider risks to expectant mothers or those hoping to start a family.
• Discuss any decisions relating to work travel prohibitions with the workforce, giving rationale for why these are being made. Keep employees updated on any change in policy.
• Keep up-to-date on the latest news reports and government advice, in order to monitor the situation and keep alert of any escalations in the virus, which could trigger travel restrictions.
• Review any business engagements that are scheduled to take place in any of the affected areas and consider whether internal travel restrictions need to be introduced, particularly for pregnant employees.
• Ensure that there are appropriate contingency plans in place for staff absences.
• Make full use of alternative methods for holding meetings such as video conference and other conference call facilities.

If you would like more advice on any of the issues raised in this piece, please do not hesitate to get in touch with a member of our Osborne Clarke employment or health and safety team.