Zika and Other Infectious Outbreaks: What is Your Company’s Travel Policy?

February 11, 2016

In just a matter of months, the Zika virus has spread from several regional outbreaks throughout Latin America to a worldwide concern, with the World Health Organization (“WHO”) declaring just last week that the spread of Zika is a “public health emergency of international concern.” The CDC has also issued numerous travel notices in the past week for countries all over the Western Hemisphere, urging travelers to take caution.

Stateside, reports of Americans returning from South and Central America with the Zika virus are popping up almost every day, and just this week President Obama asked Congress for $1.8 billion in emergency funding to combat the spread of the virus, for which there is no vaccine and no known treatment.  There is no sign of the concern over Zika abating as we head through 2016, and the United States Olympic Committee is already warning sports federations and athletes to consider pulling out of the 2016 Olympic Games scheduled for August in Rio.

With all of this fast-flying and deeply disconcerting information about a dangerous virus quickly making its way around the globe, people everywhere are justifiably concerned for their safety. But the people most at risk in the US presently appear to be international travelers, which brings up a number of questions:

  • Should international travelers be concerned about contracting Zika?
  • How will Zika affect international business travel?
  • What risks do business face with regard to international travel?
  • Should businesses examine their travel policies in light of Zika?

What Exactly is Zika?

The Zika virus is primarily transmitted by mosquitoes and was first identified in rhesus monkeys in Uganda in 1947. The virus did not travel to the Americas until 2015 when it was discovered in Mexico, Central America and South America. An alert was first issued in May 2015 that a person in Brazil had been infected, and since then, the virus has rapidly spread throughout Brazil, Mexico, Central America, and the Caribbean. As of today, US health officials have confirmed around 50 Zika infections across 13 states and the District of Columbia.

According to the WHO, the primary symptoms of Zika are mild fever, skin rashes, conjunctivitis, muscle and joint pain and headaches. The symptoms are usually mild and normally last for less than a week, and 80% of those infected do not exhibit symptoms. Far more troublesome is the potential (but as of yet unproven) connection between Zika in pregnant mothers and Microcephaly, a birth defect causing a baby to have an underdeveloped head and brain along with other complications. The Zika virus has also been connected with Guillain–Barré syndrome, a serious illness affecting the nervous system.

Is Zika a Threat to US Workplaces?

Because the virus is primarily spread through mosquito bites, it is not clear that there will be a massive outbreak in the US. The CDC has warned, however, that, while the confirmed cases in the US have primarily been among international travelers, local transmission is possible. Just last week, the Dallas County Department of Health reported that a woman had been infected with Zika through sexual contact with a traveler to Venezuela, raising fears that Zika can spread throughout the American population.

While the possibility of Zika being transmitted sexually is still unconfirmed by national health authorities, and there is so much unknown about the virus and how it spreads, it is that very uncertainty about the dangers regarding the virus that makes it so chilling to contemplate. After all, what we don’t know can hurt us, and the history of ongoing epidemics such as Ebola and AIDS show us that infectious diseases thrive in ignorance.

As an employee, manager, executive or owner of a company -especially those companies involved in international travel – it is important to understand the potential risks of Zika and other infectious viruses to both employees’ physical health and the overall well-being of the company. Even more important is to understand what we don’t know about Zika and to take that risk of uncertainty into account in conducting business involving international travel.

Zika and International Business Travel

Initial reports indicate that business travel has not been curbed by the outbreak of the Zika virus, but that may rapidly change with the massive amount of press and attention given to the outbreak in late January and February.

Oftentimes, international business travel is scheduled weeks in advance, and the business costs and expenses associated with international travel may be so high that business travelers would not necessarily feel justified and/or comfortable in canceling work-related travel plans on relatively short notice. Furthermore, the US companies with the resources to send personnel to South American countries on business are probably more likely to put their personnel up in more modern, urban hotels and buildings where mosquito bites are less likely to occur (as opposed to facilities without air conditioning and secure doors and windows).

That said, as the news reports of Zika – and its connection with the awful effects of Microcephaly – continue to mount, employees may be less willing to volunteer for or commit to a week in Brazil or Costa Rica. Travel insurance rates have soared in the past month off of the Zika reports, a potential early indicator of a drop in international travel.

Women in particular who are pregnant or may become pregnant may feel particularly disinclined to travel to infected areas. Again, so much is unknown about Zika, how long it exists in the body, and its potential effect on children, that it would not be surprising if many business travelers start to express extreme reservations about travel to infected areas, if not an outright refusal to do so.

One highly visible test of how the Zika outbreak will impact travel to affected areas is the 2016 Olympic Games set to take place in Rio in August. As alluded to above, the U.S. Olympic Committee has indicated athletes should not go if they are not comfortable. Hope Solo, the star goalkeeper for the U.S. women’s soccer team, has indicated that, as of now, she would not attend, and Kenyan authorities have also indicated its athletes may not attend. How Zika fears will affect the business travel of the many thousands of media and support personnel who would otherwise attend the games remains to be seen.

For business travelers who are either unfazed or at least willing to travel to infected areas, there are steps to take in avoiding Zika. While there is no vaccine to prevent Zika, the CDC and WHO have issued prevention tips that business and leisure travelers should be aware of when traveling to infected areas of the world, including the following:

  • Protect arms and legs by wearing light-colored long-sleeved shirts and long pants that cover as much of the body as possible
  • Stay in hotels and buildings with air conditioners and door screens to prevent mosquitoes from entering
  • Use EPA-Approved insect repellents
  • Dress children in clothing covering arms and legs, and apply mosquito netting to cribs and strollers
  • Treat clothing and gear with permethrin or buy permethrin-treated items
  • Sleep in a bed under mosquito netting
  • Keep doors and windows closed
  • Empty, clean, or cover containers that hold water such as buckets and flower pots

Is Employee Exposure to Infection a Litigation Risk?

Outside of the risk posed to the health of individual employees, companies must consider the litigation risks they are bringing upon themselves by requiring or even tacitly encouraging travel to affected areas.

Employers owe their employees a duty of care to take actions to prevent injury to the employees while they are on the job. The specific nature of the duty and the standard of care owed to the employee will vary state-by-state based on state corporate law and tort law. As a general matter, however, if employees are injured while on the job, the company may well be liable for their injuries, and courts would likely consider someone on a business trip to be “on the job” for the entirety of the trip, meaning the risk of a Zika infection could be considered the company’s responsibility.

When factoring in the potential complications and consequences of a Zika infection – for example, the possibility of an employee giving birth to a child with birth defects resulting from an infection – the costs and liabilities that a company could face are difficult to ascertain but potentially quite substantial.

This legal risk associated with employees contracting an infectious disease was exemplified during our country’s last big health scare, when Texas Health Presbyterian Hospital Dallas nurse Nina Pham contracted ebola while treating a patient who later died of the disease. Pham, who recovered from Ebola, but continued to suffer health issues and was unable to return to work, sued her employer in Texas state court for negligence, arguing the hospital failed to adequately train her and provide her with proper safety equipment. She additionally alleged a claim of invasion of privacy.

Creating Travel Policies in Uncertain Times

Given the risks associated with international business travel – which are not just limited to infectious viruses, but can include terrorism, political unrest, dangerous weather, and so on – companies engaged in international travel are advised to inform employees of all the potential dangers associated with travel to a dangerous area such that the employees are entering into their work duties voluntarily and with full disclosure of the risks.  The more that those dangerous aspects are fully explained, and protective measures are provided to prevent injuries, the better off the employees and the company as a whole will be.

Specific actions that a company can take to promote employee safety and to mitigate legal risks include:

  • Staffing international business trips on a voluntary basis
  • Avoiding negative repercussions for employees who decline international travel on the basis of safety
  • Providing constant travel advisories to business travelers from governmental and health organization sources
  • Booking transportations and hotels with confirmed track records of providing safe and clean environments and amenities
  • Providing employees with all necessary and recommended preventative equipment, supplies, and training regarding the risks of international travel

International business travel may always contain some level of unavoidable risk (and for some business travelers, therein lies the adventure), but companies are advised to reduce such risk and increase transparency and preparation as much as possible.

Jeremy Masys

By

Jeremy Masys is a writer, attorney, and musician living in Los Angeles. He earned his JD at New York University School of Law and attended USC's School of Cinematic Arts as an Annenberg Fellow. Jeremy has practiced white collar defense law in New York and Los Angeles.

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