Labor Lawyers Begin Preparing Businesses for Zika-Related Workers' Compensation Claims

It’s a scary time to be a business owner whose employees work outdoors in Miami.

Since Zika began spreading via local transmission in July, three employees at the Wynwood Yard and one Miami Beach Police officer — among many others — have reportedly tested positive. And, two pregnant firefighters were apparently reassigned in hopes of avoiding Zika-carrying mosquitos. 

Given that two of Miami’s top industries — construction and tourism — employ thousands of outdoor workers, it makes sense that law firms have begun coaching businesses about how to deal with the potential implications.

"It’s going to be a tremendous challenge when there’s somebody working on a construction crew who claims a workers' compensation injury after being bitten by a mosquito at work," says Phillip Russell, a Tampa-based labor lawyer with Ogletree Deakins.

Russell is one of seven attorneys from San Francisco to the Virgin Islands who have been assigned to the firm's Zika rapid-response team. So far, he isn’t aware of any cases of employees filing workers' compensation claims in relation to Zika. But some businesses are trying to get ahead of the issue by consulting with lawyers to see how they should proceed.

One client, for example, was holding a conference in Miami Beach and asked if the company could require its employees to attend. Russell urged the business owner to err on the side of caution, especially for younger workers.

"For employees who are or may become pregnant, our advice was don't make them go," he says. 

But he warned the company not to ban those women and their partners from attending if they wanted to make the trip. Doing so could be a violation of Title VII, which protects employees from being discriminated against based on their sex, he tells New Times.

"You can’t forbid their attendance because of this issue, because now it might interfere with their career development," Russell says. "The best solution in this scenario is to have an interactive discussion with the employee about their comfort level."

The Occupational Safety and Health Administration has issued its own Zika advisory for businesses; it urges employers to dole out bug spray and to consider reassigning at-risk employees. Russell advises his clients along those same guidelines, though he says there's no blanket strategy that fits every company. For some businesses, distributing long-sleeved uniforms might be feasible, but for others, it just wouldn't be practical in the heat.

"You can use bug spray, and that works great if you’re on a construction crew," Russell says. "But what are you going to do with the bartender at an outdoor bar at the resort? Certainly not use bug spray around food and beverage."

Like the virus itself, however, there's still a lot that labor lawyers just don't know about how these cases will proceed once affected employees inevitably begin filing claims. 

"How do you prove that the mosquito bite didn’t happen outside while the employee was mowing grass on a Sunday?" he says. "We don’t have an answer."