Laurie E. Sherwood is a partner in Walsworth’s San Francisco office where she focuses on the travel, tourism and hospitality industry. Her practice encompasses the representation of travel agencies and companies, tour operators, travel insurance companies and hotels in a variety of federal and state court cases ranging from disgruntled travelers to catastrophic injuries. Contact Laurie at firstname.lastname@example.org. Sadaf A. Nejat is an associate in Walsworth’s Orange office where she represents a variety of clients in travel and tourism, toxic tort, product liability and general litigation matters. Contact Sadaf at email@example.com.
Walsworth, a firm of more than 80 attorneys with offices in Orange, Los Angeles and San Francisco, is known for excellence in litigation and transactional matters. Walsworth is a certified Women’s Business Enterprise by the Women’s Business Enterprise National Council and by the California Public Utilities Commission, and a National Association of Minority and Women Owned Law Firms member. www.wfbm.com.
In 2014, the corporate planner started planning the company’s 2016 annual meeting in Miami Beach. The outside meeting planner started planning a 2017 incentive for top performing employees at a Costa Rica resort. It’s now 2016, and Zika is in the news daily. Despite your extensive planning, you are faced with travel advisories, employee questions, etc. What’s a planner to do?
In the midst of worldwide concerns about Zika virus infections, the U.S. Centers for Disease Control and Prevention (CDC) recently issued an unprecedented travel advisory urging pregnant women to avoid the Miami neighborhood of Wynwood where they discovered cases of locally acquired Zika virus infection — the first time the CDC has advised people not to travel to a place in the continental United States. In late August, a new cluster of five Zika virus infections around Miami Beach led the CDC to expand this travel advisory to include a section of Miami Beach.
First identified in monkeys in Uganda in 1947, Zika was later identified in humans in 1952. The first report of locally acquired Zika in the Americas did not occur until mid-2015. Moreover, it was not until the latter half of 2015 and early 2016 that the link between Zika and serious conditions, including a neurological syndrome and congenital malformations, became known. Currently, more than 50 countries have reported active Zika virus transmission, and other potential complications of Zika virus disease are the subject of intense research efforts.
Zika is a virus transmitted primarily through bites of infected Aedes mosquitos. These mosquitos can become infected when they bite an infected person and then transmit the Zika virus when they subsequently bite someone. The Zika virus also can be spread from a pregnant woman to her fetus, through sexual contact and most likely blood transfusions. Many people infected with the Zika virus will not have any symptoms or only mild symptoms, the most common of which include fever, rash, joint pain, and/or conjunctivitis (pinkeye). Other symptoms include muscle pain and headache. Symptoms can last several days to a week and resolve without medical attention. In some populations, however, Zika presents serious risks. Zika infection during pregnancy can cause microcephaly and other severe fetal brain defects. Other problems detected among fetuses and infants infected with the Zika virus before birth include eye defects, hearing deficits and impaired growth. In Zika-affected areas, there have been increased reports of Guillain-Barré syndrome, an otherwise rare disorder that can cause paralysis. There is currently no vaccine for the Zika virus, although the race is on to find one.
In light of the potentially severe risk, especially for certain populations, and the number of countries affected, travel providers are taking various steps to protect themselves from the potential impact of the virus, including offering credits, refunds and trip alternatives as travelers begin to rethink travel to affected areas. Additionally, travel providers generally owe a duty of care to travelers to disclose information that is material to the services provided. The scope of this duty to disclose is limited to what is reasonable in any given instance. Accordingly, for outside meeting planners with upcoming meetings in Zika-affected locales, it would be advisable to direct meeting participants to the CDC’s website and recommend they consult with a medical professional before traveling. This enables meeting participants to make informed health decisions and decide whether to proceed with their trip. Depending on the target population, as well as timing of the event, planners may want to consider alternative locations and work closely with their travel providers.
“Travel providers generally owe a duty of care to travelers to disclose information that is material to the services provided.”
In-house corporate travel/meeting planners face additional concerns in light of the statutory safeguards of the Occupational Safety and Health Act of 1970 (Act). The Act covers most private sector employers and their workers, and some public sector employers and workers. Its objective, via the Occupational Safety and Health Administration (OSHA), is to assure safe and healthful working conditions for workers. In keeping with this objective in light of Zika, OSHA, in concert with the National Institute for Occupational Safety and Health (NIOSH), issued a fact sheet entitled “Interim Guidance for Protecting Workers From Occupational Exposure to Zika Virus.” This fact sheet outlines steps employers and employees should take to protect themselves from Zika. While this fact sheet focuses on traditional occupational exposures such as outdoor workers, health care and laboratory workers, and mosquito control workers, as opposed to exposures resulting from work-related travel to affected areas, it provides helpful guidance. Specifically, the fact sheet recommends following the precautions listed in the fact sheet for employees who may be traveling to affected areas.
First and foremost, the CDC/NIOSH fact sheets recommend that employers keep employees informed of risks associated with Zika. The CDC website contains up-to-date Zika travel information by region, and is helpful for employers and employees. Keeping employees informed of the risks associated with Zika may result in giving employees the option to decline travel to Zika-affected areas. To avoid potential legal action, employers must maintain employees’ privacy and confidentiality when considering requests not to travel. For example, employers cannot inquire about employees’ plans for pregnancy. Further, in implementing practices to address Zika, employers should avoid discriminatory or retaliatory conduct. For example, banning women from traveling to Zika-affected areas or keeping an employee from participating in an activity in a Zika-affected area, if such participation is possible by alternative means, may be actionable.
As for precautions when traveling to Zika-affected areas, the CDC recommends use of EPA-registered insect repellents with certain active ingredients, wearing long-sleeved shirts and long pants, and taking steps to control mosquitoes, including using air conditioning where available and/or sleeping under a mosquito net bed. Employers who have employees traveling to Zika-affected areas should consider providing the necessary repellents and other items as possible.
If an employee becomes infected, the employee should be urged to seek prompt and appropriate medical evaluation. In terms of infected employees’ legal recourse against an employer, most employees will be limited to state workers’ compensation benefits. However, where there is negligence on the employer’s part or there are discriminatory or retaliatory practices in play, an employee’s potential remedies may extend beyond workers’ compensation benefits.
Until the reach of Zika is better defined and its impact better understood, employers’ safest course of action is to keep employees informed, take employee concerns seriously and institute procedures for considering them, and consider giving employees the option to avoid Zika-affected areas.
The views and opinions expressed in this article are those of the authors and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. C&IT