Four new Zika infections acquired locally from mosquito bites have been reported in the Wynwood neighborhood of Miami this week, according to Florida Governor Rick Scott, bringing the total number of locally transmitted cases to 21. Although Florida is the only state to report local transmission of the virus, Louisiana (as a neighbor with a similar climate) faces the significant threat of the virus spreading here.
As New York Times editorial contributor Peter J. Hotez warned in April before local transmission became a reality: “If I were a pregnant woman living on the Gulf Coast or in Florida, or in an impoverished neighborhood in a city like Houston, New Orleans, Miami, Biloxi or Mobile, I would be nervous right now […] these are the major urban areas where the sickness will spread.” Although New Orleans Mayor Mitch Landrieu has stated that his administration is prepared for an outbreak should one occur, the risk map from the National Center for Atmospheric Research shown below emphasizes the potential for a local disaster.
Although the fallout for workers’ comp is not entirely clear, employers, carriers and workers can take steps to limit their exposure, both financial and personal.
What is Zika?
The Zika virus was first discovered in 1947 and is named after the Zika Forest in Uganda. In 1952, the first human cases of Zika were detected, and since then, outbreaks of Zika have been reported in tropical Africa, Southeast Asia, and the Pacific Islands.
The Zika virus is spread mostly by the bite of an infected Aedes species mosquito (Aedes aegypti and Aedes albopictus). According to the CDC, these mosquitoes are aggressive daytime biters but they can also bite at night. Once a person has received an infected bite, a mother can pass the virus to her fetus, and infected persons can transmit the virus sexually.
Zika has been difficult to control because many infected individuals do not experience symptoms at all, and if they do, the symptoms are minor and easily confused with other illnesses. The most commonly reported symptoms are fever, rash, joint pain and conjunctivitis (red, irritated eyes).
The major risk – and potential workers’ comp exposure – with a Zika infection is transmission to a fetus via the mother. Zika infection during pregnancy can cause a severe birth defect of the brain called microcephaly (marked by an infant with an abnormally small head) and other developmental problems. Experts have also noted other issues with fetuses and infants infected with Zika virus before birth, such as defects of the eye, hearing deficits, and impaired growth. There have also been increased reports of Guillain-Barré syndrome, an uncommon condition of the nervous system, in areas affected by Zika.
Potential Workers’ Comp Claims Associated with Zika
The first occupational Zika case was reported in the United States in June, when a laboratory student volunteer at the University of Pittsburgh contracted the virus from a needle stick while working on an experiment using the Zika virus. According to a report from Business Insurance at the time of the accident, because of her status as a volunteer, OSHA had no jurisdiction over the matter, however, it did issue guidance to the university to prevent further injuries.
While workers’ comp coverage was not an issue in the lab accident, experts are unclear about how much exposure carriers and employers could face under a comp policy if an employee contracts Zika in the course and scope of their employment with the company.
In a recent A.M. BestTV report of the emerging risks, Doug Fullam, manager of life and health modeling for AIR Worldwide said that workers’ comp “could” kick in under certain circumstances, but that “there’s question as to whether it would.”
As Fullam explained to A.M. BestTV interviewer Meg Green: “If you’re talking about hospital workers and there’s an outbreak […] it’s likely that if you become sick that you could file a workers’ compensation claim. Now, if we take that away and talk about someone who travels a lot for work, and they can argue that their business put them in an area where they could be exposed, that becomes a little more gray. [The issue still needs] to be worked out on a legal level.”
As New York-based employment attorney Steven Mitchell Sack recently wrote in a blog post about Zika and workers’ comp, “employees have the right to refuse participation in a dangerous task. Going to a dangerously infected area most likely would be considered a dangerous task, especially for pregnant women. [However,] employers have the right to terminate employees unless the task poses an immediate risk of death or serious injury. Whether Zika-infected areas meet the immediate risk of death or serious injury requirement would be a question of fact for a court or jury to decide.”
In other words, until a workers’ comp claim is filed for Zika infection and the industry is informed, the exposure is unknown. For most cases of Zika, as mentioned above, the symptoms are mild and rarely result in hospitalization, however, the risks for pregnant women and their offspring are potentially devastating.
This begs the question: could a workers’ comp insurer be responsible for medical care for a baby born with microcephaly?
At this time, it appears that the employer and carrier would not be responsible for the care of a baby born to an employee that was infected with Zika on the job. As Seyfarth Shawattorneys Mark A. Lies, II, Patrick D. Joyce, Adam R. Young explained in their blog post on that potential liability, “generally speaking, an employer will only be liable under [workers’ comp law] for injuries to employees, and not to other parties.” However, they reiterate Sack’s point that pregnant employees can refuse assignments because of fears about infection, and employers who discipline that decision could be sued under OSHA Whistleblower Protection standards.
Best Practices for Protecting Employees
The CDC released guidance for employers earlier this year when the Zika outbreak began to spread rapidly. Lab and other medical workers should utilize PPE and closely follow OSHA’s bloodborne pathogens standard to prevent infection. However, outdoor workers and laborers are at the greatest risk. The CDC recommends that to protect them, employers should:
- Provide insect repellant.
- Provide workers with an encourage the use of clothing that covers basically all exposed skin, choosing looser options to prevent heat illness in Summer weather.
- Eliminate sources of standing water.
- Consider re-assigning pregnant employees and male employees with a sexual partner who is or may become pregnant to indoor work.
The CDC website contains more resources (many with Spanish-language versions) related to the workplace and general health, particularly for the pregnant population.