Over the past two years, the COVID-19 pandemic has triggered some of the most significant societal shifts in generations, and the employment law landscape has not been immune to such changes. Employers have had to adjust their workplace practices by incorporating new policies such as remote work, vaccine mandates, paid safe and sick leave, and various other federal, state, and local requirements to accommodate the world’s new normal.
Now, in the third quarter of 2022, the world is seeing a new outbreak: monkeypox. On July 23, 2022, the World Health Organization (WHO) declared monkeypox a public health emergency of international concern – the organization’s highest level warning. Shortly after, on August 4, 2022, the United States declared monkeypox a public health emergency. The arrival of monkeypox is a stark reminder that employers should have general policies in place to address communicable diseases so that work operations are not meaningfully disrupted and employees understand their entitlements and obligations when they are under the weather.
This post will provide employers with pertinent information related to monkeypox, including methods of prevention, handling workplace exposures, administering policies and practices, and how to get ahead of future communicable disease outbreaks as they arise.
What is monkeypox?
According to the U.S. Centers for Disease Control and Prevention (CDC), monkeypox is a rare disease caused by infection with the monkeypox virus. Monkeypox virus is part of the same family of viruses as variola virus, which causes smallpox. Monkeypox symptoms are similar to smallpox symptoms; however, they are milder and rarely fatal. Monkeypox spreads through direct contact with infectious rash, scabs, or body fluids. The CDC also posits that it can spread through respiratory droplets during “prolonged, face-to-face contact, or during intimate physical contact, such as kissing, cuddling, or sex.” Moreover, monkeypox remains communicable from the time symptoms start until the bumps have healed and a new layer of skin has formed.
Will monkeypox be as disruptive to the workplace as COVID?
Luckily for most employers, monkeypox appears unlikely to spread quickly in most workplaces due to the close and prolonged contact required.
What should employers do to prepare for the potential of monkeypox in the workplace?
The CDC recommends routine cleaning of commonly touched surfaces and items. For maximum effect, employers should employ an “EPA-registered disinfectant in accordance with the manufacturer’s instructions.” Furthermore, employees should be encouraged (or perhaps even required) to wash their hands frequently “with soap and water or use an alcohol-based hand sanitizer, especially before eating or touching” their face and after using the bathroom. In addition, employers may want to encourage employees to consider vaccination in accordance with CDC guidance.
Current guidance is available at https://www.cdc.gov
What should an employer do if an employee tests positive for monkeypox?
If an employee tests positive for monkeypox or starts exhibiting symptoms, the employee should immediately leave the workplace, isolate away from others, and contact their healthcare provider. Currently, the CDC recommends that individuals who test positive or are presumed positive, isolate until their rash has completely healed and all scabs have fallen off, forming a fresh layer of skin. This process can take anywhere from two to four weeks according to WHO and other authorities. Unlike the early days of COVID, it seems unlikely that employers will need to completely shut down operations due to a positive case of monkeypox; however, a four-week period of isolation for any employee who tests or is presumed positive still has the potential to impact operations.
Does an employer need to provide leave to an employee who tests positive for monkeypox?
There are no current monkeypox-specific leave requirements at the federal level. However, an employee who tests positive for monkeypox or who needs to quarantine due to monkeypox may be entitled to leave under state or local sick/earned paid leave laws, the federal Family and Medical Leave Act (FMLA), state- and local-level medical leave entitlements, and/or employer leave policies. For employers who currently offer COVID isolation or quarantine leave, it may also be appropriate to consider expanding those policies to accommodate the extensive recovery and isolation time associated with monkeypox.
In addition, employers should be mindful of requirements under the Americans with Disabilities Act (ADA) and similar state and local laws to provide reasonable workplace accommodations. Employers may need to offer short term reasonable accommodations to employees, which might include an unpaid period of leave beyond the employee’s statutory entitlements and/or a remote work accommodation for employees who can (and are physically able to) perform their job functions remotely.
Should we notify other employees of a positive case?
Similar to COVID, an employer may inform employees that there was a positive case of monkeypox, but should not disclose the employee’s identity or other identifying information (i.e., only essential information should be shared). Consulting with legal counsel in these situations is strongly recommended.
Employees who may have been in close contact with the infected employee should seek testing, monitor the development of monkeypox symptoms, and consider vaccination in accordance with CDC guidelines. As a reminder, the ADA requires that employee medical information be kept confidential. The same confidentiality provisions that have been applied to COVID should also be applied to monkeypox.
Is there anything else employers should do at this time?
Employers should consider updating their policies – if they have not already done so – to include the company’s response to communicable diseases generally, including monkeypox. It may also be advisable to send a communication to employees explaining the pertinent details of monkeypox, guidance on best practices to reduce transmission, and the company’s response plan. While monkeypox is not likely to spread as quickly or easily as COVID, a prudent approach and response from employers may lay a helpful foundation if another highly contagious respiratory disease does arise in the future.