With growing awareness and concern over the spread of the Zika virus, employers need to plan how they can protect their employees.
What duty does an employer owe its employees?
Organisations with staff who travel often to higher-risk regions should bear in mind their duty to take reasonable care of the health and safety of employees. This duty arises from the Health and Safety at Work etc Act 1974. To avoid liability employers should carry out risk assessments as to whether workers are being put in a harmful situation and what measures are in place to avoid or reduce the risk.
What if an employee decides to take a business trip to higher-risk areas?
The Foreign Office and World Health Organisation are not currently warning against travel to affected countries. They are, however, advising pregnant women to postpone travel and for all travellers to take precautions to avoid mosquito bites. Staff visiting any of the higher-risk regions should be made aware of all up-to-date travel advice and be fully prepared before they go. Employers should continuously monitor their employees' risk to exposure and keep in touch with the individuals while they are abroad.
Can employers forbid pregnant employees from travelling to higher-risk areas?
Pregnancy is a protected characteristic under the Equality Act 2010 so a woman only has to prove that she would have been asked to go on a trip but for her pregnancy to show discriminatory treatment. However, paragraph 2 of Schedule 22 of the Equality Act 2010 states that employers can treat women differently to comply with legislation for the protection of pregnant women. The Management of Health and Safety at Work Regulations 1999 places a duty on employers to assess workplace risks to avoid any significant risks to new or expectant mothers. Therefore employers should educate employees about the risk of the Zika virus to pregnant women and consider discouraging pregnant workers from travelling to high-risk countries.
What should employers do if they discover an employee has contracted the Zika virus?
There have been no reported incidents of the Zika virus being spread through casual contact with infected persons. Since it does not spread through regular employee-to-employee interactions it would not be reasonable to require someone who has contracted Zika to stay away from the workplace. For the same reason it would not be proportionate to require the individual to attend a medical exam or to inform the employee's colleagues. In addition, employers must maintain an awareness of their data privacy and confidentiality obligations towards anyone known to have contracted the illness.
What should employers do if an employee refuses to travel?
If an employee refuses to go on a business trip the employer should carefully consider the person's reason for the refusal. If the individual's usual role requires him or her to travel and the employer has deemed it safe to travel to a particular area it could be treated as a disciplinary offence if the employee refuses. Each case should be considered carefully. Any disciplinary action taken should comply with internal policies and be dealt with following fair procedure. The employee should be given a full chance to respond before any disciplinary decision is taken.
Are there any other steps an employer should take?
There are various steps employers can take to implement an effective strategy for protecting employees. Organisations should:
- Keep employees informed and up-to-date with any developments or government advice;
- Update staff contact details to ensure employers can keep in touch when they are travelling;
- Refresh the company's policies, such as its absence policy and disciplinary policy, to deal with the possibility of employees refusing to come into work or travel for work out of fear of contracting the virus; and
- Continuously review whether certain business trips are necessary or whether meetings could take place via telephone or video conference.
Paul Callegari and Deirdre Treacy are partner and associate at K&L Gates