Bauer Business Focus

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Justin Markel | Aug 26, 2016

Published on August 26, 2016

Justin Markel Photo by Al Ortiz | Houston Public Media

On Bauer Business Focus – a conversation on the liability of employers if an employee contracts Zika on the job.

Labor Attorney Justin Markel from Roberts Markel Weinberg Butler Hailey PC stopped by Bauer Business Focus to discuss how employers can protect themselves from liability claims related to the Zika virus. One of the most effective actions employers can take is to subscribe to a workers’ comp insurance plan, said Markel.

“Texas is a state where employers can opt-in to a workers’ comp scheme. So if an employer is a workers’ comp subscriber and the employee got Zika while working, then it’s likely that that kind of illness would be covered by workers’ comp. So in that case the benefits under work comp would be exclusive and the employer wouldn’t be held liable. But if the employer is what we call a nonsubscriber – basically the employer doesn’t subscribe or doesn’t purchase workers comp insurance – then that leaves the employer open to a potential negligence claim,” he said.

According to Markel, whether or not an employer is considered liable depends on a variety of factors.

“The general theme in the law is that an employer generally has a duty to maintain a safe working environment, so the question is going to be whether the employer breached that duty of care,” Markel said. “Now if an employee happens to get Zika and the employer took reasonable measures to keep that from happening, then perhaps the employer didn’t breach the duty of care. The employer wouldn’t necessarily be liable in that instance.”

Reasonable measures include educating employees on how to avoid getting bitten by mosquitoes by wearing long sleeves and pants and using EPA approved bug spray. Employers should also try to limit standing water near their properties, which can attract mosquitoes.

“I think the key for employers is not to overreact,” Markel added. “And if it becomes a concern of employees, then I think education is really the key.”

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