by Henry Chajet and Kaileigh Fagan

With the summer in full swing, employers should remember that the season’s heat and bugs are not just uncomfortable nuisances. They can easily become legal liabilities. In this two-part series, we’ll walk through the hazards and preventive guidance you need to protect your workers and your safety record.

Federal and state agencies have put employers on notice that in many cases, employers must take steps to protect employees against outdoor hazards like mosquito-borne disease and heat stress. Moreover, these federal agency warnings could become evidence used in civil lawsuits to show that companies have some sort of duty to protect their workers and others from these natural conditions.

OSHA and CDC reiterate Zika concerns, guidance

This past May, OSHA updated its guidance from last year on the dangers and employer responsibilities relating to the Zika virus. According to OSHA, mosquitoes can carry the virus from one person to another. “Many people infected with Zika virus won’t have symptoms or will only have mild symptoms; however, Zika infection during pregnancy can cause serious birth defects.”

The interim guidance makes recommendations specifically tailored for employers and workers in environments that may present an increased risk for Zika exposure. These job types include outdoor workers, healthcare and laboratory workers, and mosquito control workers.

OSHA warns that these are not just suggestions or best practices. The agency asserts that under a number of standards, employers are required to take certain steps to protect employees from Zika. Citing the Centers for Disease Control, OSHA says that employers should, among other prevention measures:

  • Inform workers about their risks of exposure.
  • Provide insect repellents and encourage workers to use them (while also considering and providing detailed guidance about how to use these products effectively and safely).
  • Ensure that workers wear clothing that covers their hands, arms, legs and other exposed skin.
  • Consider providing employees with hats with mosquito netting that covers the neck and face.
  • In warm weather, encourage workers to wear lightweight, loose-fitting clothing, which may help prevent mosquitoes from biting bare skin.
  • Periodically inspect work sites to identify and eliminate sources of standing water, where mosquitoes lay their eggs, and train workers about the importance of eliminating these areas.
  • If requested, consider reassigning to indoor tasks any female worker who is pregnant or whose sexual partner is pregnant or may become pregnant.

OSHA believes that, depending on a particular worker’s assignment and environment, any number of OSHA standards could apply to Zika concerns including:

  • Requirements for Personal Protective Equipment (“PPE”) under 29 CFR 1910 Subpart I (or, for construction, 29 CFR 1926 Subpart E), particularly for “when workers need wearable mosquito netting or other PPE”
  • The Bloodborne Pathogens (BBP) standard in 29 CFR 1910.1030, including “when workers have exposure to blood or other potentially infectious materials”
  • The Safety Training and Education standard at 29 CFR 1926.21, particularly section (b)(4), for “when construction workers are in job site areas where harmful animals are present (e.g., mosquitoes that could spread the Zika virus).”

Of course, OSHA always has the General Duty Clause to fall back on if it wants to argue that a workplace with Zika-bearing mosquitoes is not free from recognized hazards that are likely to cause death or serious harm to employees.

Employers should read the OSHA guidance carefully because it contains detailed and complicated information about Zika risks and effective preventive steps. In addition, presents a wealth of updated information on Zika cases, including data and risk location information. According to the government, the presence of mosquitoes that may carry the virus can depend on species, temperature, elevation, and geography.

Clients are welcome to call us with any questions or concerns on preventive programs and their documentation. If desired, we can pose client questions anonymously to CDC, OSHA, MSHA, DOT or other regulatory and enforcement agencies.