|The presence of the Zika virus raises several interesting questions for employers. The following are just a few of those potential issues.|
First, OSHA and the CDC have issued a guidance that addresses an employer’s obligation to protect workers from occupational exposure to the virus. That guidance currently pertains to workers in the following areas: outdoor, healthcare and laboratory, mosquito control, and business travelers. Employers with workers covered by the guidance should be aware of the recommendations and recognize that the general duty clause could be implicated in terms of the employer’s obligation to keep workers safe. The Guidance can be found at www.cdc.gov/niosh.
Second, workers’ compensation is likely to be implicated in the event a worker contracts the virus and claims it occurred during employment. The question that will initially need to be addressed is whether that exposure arose out of and in the course of employment, which is a threshold question for coverage. The specific issue is likely to be how/if the employee can meet the burden of proving the exposure occurred while and because they were at work, as opposed to occurring outside of work hours/tasks. In addition, workers’ compensation issues can be implicated in the event an inoculation is developed for the virus. Specifically, the issue will be whether a worker who develops medical problems as a result of the inoculation is entitled to workers’ compensation coverage. The general rule is that if the inoculation is required or strongly encouraged by the employer, any resulting effects could be deemed work related.
Interestingly, the Maine Workers’ Compensation Appellate Division is hearing an en banc argument at the upcoming Comp Summit involving a claim in which an employee developed medical problems following a hepatitis inoculation at work. The question presented is whether there was a sufficient connection to her work to render the resulting symptoms work related. This argument is being presented on behalf of the employer by Rudman Winchell and may have bearing on the outcome in a similar situation involving any Zika inoculation.