Zika is now an osha issue
By Adele L. Abrams, Esq., CMSP
In August 2016, the Centers for Disease Control (CDC) confirmed that there are now 42 cases of the Zika virus, which were locally acquired from mosquitoes in Florida. The spread of the virus domestically at this point may be inevitable, and health consequences affect not only pregnant women and their babies (who may be born with profound disabilities including microcephaly) but even healthy adult workers.
This has triggered significant discussion and potential legal action about what employers must do to protect outdoor workers, such as those engaged in construction, outdoor loading, storage or loading activities, and landscaping work. In addition, for pallet shops that keep bay doors or loading docks open to the elements, mosquitos can also invade indoor areas and adversely affect workers.
Now, the Occupational Safety & Health Administration (OSHA) has weighed in, issuing interim guidance that will be updated as more information becomes available on this emergent workplace hazard.
OSHA reminds employers that they have an obligation to provide a workplace “free from recognized hazards” to its workers, under threat of General Duty Clause citations and their maximum penalty of $124,709 per violation.
Occupational contraction of Zika falls within the scope of this “general duty” and OSHA has previously issued similar enforcement warnings with respect to the H1N1 pandemic flu and the Ebola virus. For its part, the National Institute for Occupational Safety & Health (NIOSH) is monitoring the spread of Zika in the continental United States and its territories, as well as in other regions where workers may have visited and become infected before returning to the U.S.
The case statistics continue to grow disturbingly. As of August 10, 2016, the continental U.S. has nearly 2,000 travel-associated Zika cases, and 42 sexually transmitted or locally mosquito-acquired cases; but when U.S. territories are included, they add 31 travel-related cases and over 6,500 locally acquired cases. The vast majority of cases currently are in Puerto Rico, where a public health emergency has been declared by the U.S. government, which will allow the U.S. Department of Health & Human Services to award grants, access emergency funds and temporarily appoint personnel where needed.
In terms of adverse health consequences, there has been one infant Zika death reported in Texas, and the potential number of infected mothers and infants is still being tabulated. Meanwhile, the continental U.S. and its territories have recorded 26 Zika-related cases in adults of Guillain-Barré syndrome. Guillain-Barré syndrome is a disorder in which the body's immune system attacks part of the peripheral nervous system. The first symptoms of this disorder include varying degrees of weakness or tingling sensations in the legs. In many instances the symmetrical weakness and abnormal sensations spread to the arms and upper body. These symptoms can increase in intensity until certain muscles cannot be used at all and, when severe, the person is almost totally paralyzed and the condition becomes life threatening because it can impact breathing, blood pressure and heart rate. There is no known cure for Guillain-Barré syndrome.
In its warnings to employers, OSHA notes that the Zika virus has the potential to spread wherever mosquitoes capable of spreading the disease are found, including the southern and southwestern states. Symptoms are often mild and begin within a week of being infected, but often those infected are unaware of the illness even though they can sexually transmit it to others for an extended period of time. The most common symptoms are fever, rash, joint pain and “pink eye” but victims may also have muscle pain, headache or even neurological and autoimmune complications. Infected infants can suffer brain defects, eye and hearing deficits, and impaired growth.
OSHA urges employers to protect workers from getting mosquito bites, given that there is no currently approved Zika vaccine and no specific treatment for infected workers. OSHA expects employers to train workers now about their risks of exposure to Zika, both via mosquito bites and direct contact with infectious blood and bodily fluids (e.g., first aid providers and health care workers), and also on how to protect themselves. Workers who are, or may become pregnant – or whose sexual partners may become pregnant – should be trained on the modes of transmission and the link to birth defects.
If occupational exposure and transmission occurs, and no mitigating action was taken to reduce exposure to the extent feasible, employers could have liability for worker’s compensation damage claims, or personal injury tort claims, in addition to possible OSHA citations.
Those who could come in contact with infectious bodily fluids may need specialized personal protective equipment and should follow the protocols in OSHA’s Bloodborne Pathogens standard (“BBP,” 29 CFR 1910.1030).
Outdoor workers clearly are also at a heightened risk of exposure, and OSHA recommends the following employer actions:
- Inform workers about their risks of exposure through mosquito bites and train them how to protect themselves (check the CDC Zika website to track Zika-affected areas;
- Provide insect repellants and encourage their use in accordance with manufacturer’s recommendations, including how to properly combine the use of repellant and sunscreen;
- Provide workers with clothing that covers their hands, arms, legs and other exposed skin, and consider providing hats with mosquito netting to protect the face and neck (being mindful of conflicting hardhat requirements that take precedence);
- Encourage warm-weather workers to wear light-weight loose-fitting clothing that will be a barrier to mosquitos (but watch out for loose clothing that could become entangled in moving machine parts or power tools), provide workers with sufficient shade, water and rest, and monitor them for heat illness symptoms;
- Eliminate sources of standing water (e.g., tires, buckets, wheelbarrows, cans and bottles) whenever possible to reduce mosquito breeding, and train workers about the importance of getting rid of standing water where mosquitos can proliferate at the worksite; and,
- Consider reassigning workers who are or may become pregnant, or male workers whose partners may become pregnant, by reassigning them to indoor tasks during the outbreak (but be careful not to violate any workers’ rights under the Pregnancy Discrimination Act provisions of the Civil Rights Act).
Employers have a key educational role to play in combatting what may turn into a critical public health emergency in the near future. Therefore, workers should be urged to monitor for symptoms and to seek prompt medical attention if there are concerns about disease infection.
If a worker does become infected, they should be urged to rest, drink fluids, take fever and pain reducing medications, and to speak with a health care professional before taking any prescription drugs. In addition, to prevent transmission via sexual contact, condom use or abstinence are encouraged by the CDC. If the exposure occurs due to blood-borne transmission in the workplace, employers must comply with the medical evaluation and follow-up requirements in the BBP standard, and should consider options for granting sick leave during the infectious period.
Finally, remember that workers are protected under Section 11(c) of the OSH Act from retaliation arising from the worker raising concerns about workplace safety and health. Employers similarly cannot retaliate against employees who report an occupational injury or illness, including work-related Zika infection. Under the new OSHA electronic recordkeeping rules that take effect November 1, 2016, any employer violations of Section 11(c) are also punishable by OSHA’s maximum fine, plus any relief that OSHA seeks for the affected worker. For additional information, review the OSHA guidance.
(Article written and published exclusively for PalletCentral Magazine, September-October 2016)
Adele L. Abrams is an attorney and safety professional who represents companies in litigation with OSHA and provides safety training and consultation. The Law Ofice of Adele L. Abrams PC has three offices: Beltsville, MD; Denver, CO; and Charleston, WV.