Ms. Ippolito-Craven

Hospitality Law

How Hotels Can Minimize the Bite of the Zika Virus

By Francesca A. Ippolito-Craven, Shareholder, Kubicki Draper

The Zika virus has created a potential myriad of legal issues that should be considered by hotel owners and operators in the United States and its territories, particularly in light of the fact that the World Health Organization (WHO) has declared that the Zika virus infection and its associated congenital and other neurological disorders continues to be a "public health emergency of international concern." The U.S. Centers for Disease Control and Prevention (CDC) has also advised that pregnant women should consider postponing non-essential travel to locales that have been zoned areas of active transmission. Hotel owners and operators may potentially face exposure to workers' compensation claims and personal injury lawsuits if a guest or employee can prove that he or she contracted a Zika infection when bitten by a Zika infected mosquito on a hotel's premises, developed a Zika linked illness or disease, and that the hotel failed to take reasonable measures to control mosquitos to provide for the safety of their guests. Additionally, hotels may be faced with attempts, some disingenuous, to terminate or cancel future scheduled group events, such as weddings, conferences and meetings, on the basis that attendees potentially may be exposed to the Zika virus. Hotels must consider the health and safety of their guests and employees, while at the same time, preserve and promote guest occupancy and attendance at events.

History of Zika

According to the WHO, the Zika Virus was first isolated from a rhesus monkey in the Zika forest of Uganda in 1947. The first reported cases of humans infected with Zika were in Uganda and the United Republic of Tanzania in 1952. From the 1960s through the 1980s, human infections were found across Africa and Asia and were typically accompanied by mild illness. The first large outbreak of disease caused by Zika infection was reported on Yap Island, Federated States of Micronesia in 2007. In July, 2015 Brazil reported an association between the the Zika virus infection and Guillain-Barré Syndrome (GBS). In October, 2015 Brazil reported an association between Zika virus infection and microcephaly in infants.

Current Zika Virus Outbreaks

The CDC has reported there are currently Zika virus outbreaks occurring in 48 countries in the Americas (including the United States), three United States Territories, eight Oceania/Pacific Islands, Cape Verde (Africa), and Singapore (Asia). As of November 16, 2016, the CDC has advised there are 139 locally acquired mosquito-borne cases reported in Florida, and 4,115 travel-associated cases reported throughout the United States. Of the reported locally acquired cases in the United States Territories, there are 31,294 in Puerto Rico, 603 in the U.S. Virgin Islands, and 54 in American Samoa. Of the reported travel-associated cases in the U.S. Territories, there are 115 in Puerto Rico, two in the U.S. Virgin Islands, and zero in American Samoa.

An area of Miami Beach, Florida has recently been declared by the CDC a zone of active Zika transmission. This has prompted a rapid response by governmental agencies, which has included aerial spraying to eradicate or control mosquitos.

Modes of Transmission

According to the CDC, the Zika virus is transmitted to humans primarily through the bite of an infected Aedes species mosquito. This species includes the Aedes Eegypti ("Yellow Fever Mosquito") and the Aedes Albopictus ("Asian Tiger Mosquito"). Other modes of transmission include from pregnant mother to her fetus (intrauterine and perinatal transmission), or through sex, blood transfusion or laboratory exposure. Fortunately, once a person has been infected, he or she is likely to be protected from future infections.

Symptoms and Illnesses Potentially Resulting from a Zika Infection

The CDC has advised that many people infected with the Zika virus won't have any, or will only have very mild, symptoms. The most common symptoms are fever, rash, joint pain and conjunctivitis. Other symptoms include muscle pain and headaches. These symptoms may last several days to a week. People usually don't get sick enough to go to the hospital, and very rarely die. Thus, many people do not even realize they have been infected.

If a pregnant mother is infected with Zika she may pass it to her fetus and it may cause microcephaly and other birth defects. Microcephaly is a birth defect where a baby's head is smaller than expected when compared to babies the same sex and age. Often, babies with microcephaly have smaller brains that might not have developed properly. Other problems may include eye defects, hearing loss and impaired growth in infants. A Zika infection should not affect future pregnancies, as long as a mother does not become pregnant for at least eight weeks after potential exposure or symptoms start.

Zika may cause a rare sickness of the nervous system known as Guillain-Barre syndrome (GBS). GBS causes a person's own immune system to damage nerve cells, which may lead to muscle weakness and sometimes paralysis. Fortunately, only a very small proportion of people with a recent Zika virus infection contract GBS.

Presently, there is no specific treatment for the Zika virus. In the United States, significant resources recently are being expended to develop a vaccination.

Prevention of Claims and Lawsuits Based Upon Zika

While hotel employees and guests may attempt to pursue claims or lawsuits based on personal injury to themselves or their infants, it may be very difficult to prove liability on the part of the hotel. The employee or guest would have to prove that he or she was bitten by a Zika infected mosquito on the premises of the hotel. This likely would be difficult, particularly since mosquitos are transient, and symptoms in humans are not instantaneous and usually develop two to seven days after exposure.

Hotels can make reasonable efforts to prevent their employees and guests from being bitten by Zika infected mosquitos. The CDC, WHO, health departments for various states and Occupational Safety and Health Administration (OSHA) have guidelines that can be considered. Efforts can be made to prevent and control mosquitos by using larvicides or insecticides, removing standing water, removing plants that retain large amounts of water, using screens and air conditioning, sealing and avoiding build up of garbage, and making sure doors and windows remain closed to the outdoors. Environmental Protection Agency (EPA) registered mosquito repellants can be made freely available to employees and guests for use. Bottles of repellant can be placed in indoor and outdoor common areas, near exit doors, at the reception area, in break areas and in guest rooms. Guests and employees could be encouraged to wear protective clothing. Clear and visible signs can be posted advising guests and employees of measures that should be considered to protect themselves against mosquito bites.

Group Event Cancellations

Meeting and event planners and hosts may attempt to cancel or terminate future events, or substantially reduce room blocks, due to the Zika virus in zones of active Zika transmission. The success of termination or cancellation of an event, or reductions in room blocks, likely depends, however, on the particular wording of the termination, cancellation and/or attrition clauses in the event contract.

Termination of the event based upon "force majeure" may prove to be difficult to the planner or host. "Force majeure" is typically considered events beyond the nonperforming party's control, such as acts of God, natural disasters or government actions, that the parties agree should excuse contractual nonperformance. To a hotel, "force majeure" may mean it is totally impossible for the meeting or event to be held or for the hotel to provide its facilities or services. A planner or host may attempt to interpret "force majeure" as an act or event outside the contract that materially affects the event or makes it substantially more difficult to stage the meeting as planned or attract the previously anticipated number of attendees.

A contract is canceled when one party decides not to perform for reasons other than "force-majeure." As stated above, success of cancellation will depend on the wording of the contract.

Hotels in zones of active Zika transmission should anticipate event planners and hosts negotiating future events with Zika in mind. Thus, careful attention must be given to the specific wording of the above-mentioned clauses to make sure there is a meeting of the minds between the parties and to avoid the potential of future disputes.

Insurance Considerations

Hotels may have difficulty securing coverage and indemnification for incurred damages due to Zika. Insurance companies may require a significant premium, or specifically exclude coverage for, workers' compensation, personal injury, or cancellation of events due to the Zika virus. Insurers may seek to deny coverage if it has a blanket exclusion for communicable diseases (those which are spread between people or from animals to humans). It is questionable, however, if Zika fits within the definition of communicable disease.

As discussed above, the Zika virus certainly and potentially creates numerous legal issues that should be kept in mind by hotel owners and operators. Of course, hotels must always consider the health and safety of their guests and employees first. At the same time, however, efforts must be made to preserve and promote event occupancy. Consideration must be given to the current and future wording and specificity of cancellation, termination and attrition clauses to prevent cancellation or termination of upcoming and future events.

Editor notes: With the controversy surrounding the credibility of the Zika Virus as a possible hoax brought upon us by Big Pharma, it is up to the reader to decide the level of urgency to give to this matter.

Francesca A. Ippolito-Craven is a Shareholder and Hospitality Practice Group Co-Chair in the Miami, Florida office of Kubicki Draper, a full-service firm. Her practice involves representing owners, operators, developers, contractors and franchisees of hotels, resorts, vacation clubs, restaurants, health clubs and spas, and bars and night clubs in hospitality and associated retail and vendor related operational and management issues, transactional matters and litigation. Throughout her career, she has drafted, negotiated and litigated various operational, vendor, event and artist agreements. Additionally, she has handled lawsuits involving liquor liability, event sponsorship, sexual assault, security, premises liability, products liability, toxic and hazardous substances, foodborne illnesses and construction. Ms. Ippolito-Craven can be contacted at 305-982-6604 or fic@kubickidraper.com Please visit http://www.kubickidraper.com for more information. Extended Bio...

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