California Issues Monkeypox Guidance for Employers

On September 15, 2022, California’s Division of Occupational Safety and Health (Cal/OSHA or “the Division”) published Guidance on Protecting Workers from Monkeypox (MPX).  The guidance applies to workplaces covered by the Aerosol Transmissible Disease (ATD) standard, Title 8 Code of Regulations Section 5199, which includes a defined set of healthcare facilities, medical transport, police, and public health services, among others. 

Of greater impact is the preamble to the guidance, which states that employers not covered by section 5199 must protect their employees under their Injury and Illness Prevention Programs (IIPP) required under Title 8 section 3203 and sanitation requirements set forth under section 3362. While silent on specific steps non-ATD employers must take, the guidance signals that Cal/OSHA will consider MPX a new workplace hazard subject to an employer’s duty to assess, correct and train employees on hazards. Employers should take any reported MPX case in their workplace seriously and contact a workplace safety specialist. Further, employers with public-facing employees should be prepared to document hazard assessments and sanitation efforts should Cal/OSHA make moves to utilize IIPP enforcement as a means to address the health hazard. 

With respect to employers covered by the ATD, the guidance does not impose new obligations on employers but provides guidance for employers already covered by the ATD.  In that regard, “monkey pox” has always been listed in Appendix A to the ATD under “diseases/pathogens requiring airborne infection isolation.” For that reason, the guidance notes that MPX is primarily spread by “close or direct contact but can also become airborne.” The guidance reminds employers already covered by the ATD of their obligations to:

  • Implement a written program to prevent or reduce the transmission of aerosol transmissible diseases, including MPX;
  • Provide and ensure the use of respiratory protection for employees that may be exposed to MPX;
  • Ensure that personal protective equipment (PPE) is provided and used by employees exposed to known or suspected cases of MPX, including when handling linens or surfaces that may be contaminated;
  • Implement written procedures to address exposure incidents; and
  • Report exposure incidents to the local health officer.

When seeking to comply with the above, employers should keep in mind that there are different requirements for referring employers (i.e., employers that do not house and/or treat ATD patients), laboratories, and other facilities. In most cases this means that employers should revisit their ATD programs to ensure that their engineering controls, work practice controls, referral procedures, etc., are able to address occupational exposure to MPX.

Additionally, employers subject to Cal/OSHA’s ATD standard should develop practices to ensure compliance with its requirement to maintain an employee’s pay, rights, and other benefits during removal due to work-related MPX exposure. Employers, especially healthcare employers, should also be cognizant to avoid discrimination—including discriminating against individuals who are disabled or perceived as disabled—because they are exhibiting symptoms suggestive of having contracted MPX, or individuals belonging to certain protected classes where the virus is most prevalent.

Employers are advised to consult with their attorney for more information or questions on how to help reduce the chances of exposure to MPX, and what steps to take should an employee become infected.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.