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.
Dear Littler: After we finally got our minds (and workplace policies and practices) wrapped around COVID-19, our employees have now expressed concern about monkeypox and what we’re doing about it. Although we haven’t had any outbreaks in our main offices in California or New Jersey, we want to get ahead of it this time. Is there anything we should be doing differently or thinking about for monkeypox versus what we did for COVID-19?
—Concerned on the Coasts
Perhaps as a result of the impact of COVID-19 in the workplace – and on our lives outside of work – news about the recent appearance of monkeypox (MPX) in the U.S. has employers concerned, especially since the White House declared the spread of MPX virus in the United States a Public Health Emergency on August 4, 2022. California, Illinois, New York, and Puerto Rico have also declared states of emergency regarding the monkeypox virus. But MPX is not COVID-19. It is a rare disease caused by infection with the virus that causes smallpox. Although MPX symptoms are similar to smallpox symptoms, they are milder, and the disease is rarely fatal. Symptoms may include pimples or blisters on the face, inside the mouth, and on other parts of the body including the hands, feet, chest, or genital area; fever; headache; muscle aches and backache; swollen lymph nodes; chills; and respiratory symptoms (e.g., sore throat, nasal congestion, or cough).
The good news is there is already a vaccine available for MPX. Most importantly for employers, MPX is much less contagious than COVID-19, and it is not spread through the air unless there is close and prolonged face-to-face interaction. So how is MPX spread? Generally, it is spread through direct contact with the infectious rash, scabs, or body fluids, including respiratory secretions, as well as touching fabrics, objects, and surfaces that have been used or touched by someone with the virus. It is also spread during intimate physical contact, including not only sexual contact but also massage, kissing, and cuddling.
Your question doesn’t indicate what type industry your company is in, but according to the California Department of Public Health (CDPH), there is no evidence to date that MPX is spread by:
- Trying on clothes or shoes at a store;
- Traveling in an airport, on a plane or on other public transit; or
- Casual contact with other people.
Workplace Practices and Policy Considerations
Employers that already have compliant COVID-19 policies and workplace practices in place may not have to do much to adapt those policies and practices for MPX. The safety practices we learned during the pandemic – staying home if sick, washing hands properly and frequently, and avoiding close personal contact – can serve us well in this situation, too.
There are some differences between COVID-19 and MPX that may impact the way your company responds, however. The incubation period for MPX is longer than for COVID-19, so symptoms may not develop until three weeks after exposure to the virus. Illness with MPX also typically lasts two to four weeks, which is longer than most cases of COVID-19, particularly in people who have received a COVID-19 vaccine.
You mentioned that California is one of your primary bases of operation but did not specify whether your workplace is covered by the state’s Aerosol Transmissible Disease (ATD) Standard. This standard applies primarily to a defined set of healthcare facilities, medical transport, police, and public health service entities, among others. If your workplace is covered, California’s Division of Occupational Safety and Health (Cal/OSHA) recently issued guidance on protecting workers from MPX. This guidance does not impose new obligations on employers, but rather provides direction for employers already covered by the ATD standard and reminds them of their existing obligations to address ATDs.
Even if you are not an employer covered by the ATD, the guidance still states 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 investigate your workplace.1
Isolation. If an employee becomes ill, the employer should instruct the employee to consult their health care provider, stay home and isolate.
Because you indicate that you operate in the Golden and Garden States, you may wish to review the CDPH and New Jersey Department of Health guidance on MPX in addition to any specific guidance in other cities and states in which you operate. In its isolation guidance, for example, the CDPH includes suggestions on when workers may end isolation and return to work. The agency recommends that workers not return to work until all of the following criteria are met:
- Any fever or respiratory symptoms have been resolved for at least 48 hours;
- No new lesions have appeared for at least 48 hours; and
- Any lesions that cannot be covered, such as those on the face, are fully healed (i.e., scabs have fallen off and a fresh layer of skin has formed at the lesion sites).
The guidance provides that workers may return to work once the above criteria are met provided that:
- The employee’s work does not involve direct physical care or contact with others, e.g., massage therapy, estheticians, etc.;
- The employee’s workplace is not a “setting of concern”2 (such as healthcare settings, childcare, schools, or certain congregate housing situations); and
- Virtual work is not possible.
The CDPH recommends that people resuming activities after isolation take certain precautions when leaving the home, such as wearing a mask near others, avoiding crowded settings, and covering unhealed lesions.
Similarly, New Jersey’s Department of Health provides a MPX toolkit that includes a poster on isolation guidance and specifies that individuals with MPX should isolate until all lesions have resolved, usually two to four weeks after they appeared.
Close Contacts. People exposed to someone infected with the MPX virus can continue their routine daily activities (for example, go to work or school) if they do not have signs or symptoms of MPX.
Leave. Because isolation periods and symptoms can vary, an employee may be unable to work, or work in person, for a few weeks, which could be stressful for employers and employees.
Although a few weeks is a long time to be away from work, a family and medical leave law, like California’s, could provide weeks of job-protected leave to employees with a serious health condition. An extended leave of absence might also be a reasonable accommodation of an employee’s disability. And in New Jersey and a few other states, your employees might have certain leave rights when they need to quarantine or isolate.
For employees, being able to keep their job will provide some comfort, but going weeks without pay won’t be easy. There may be some pay options for them, however. California and New Jersey both have paid sick leave laws that would fully pay employees for at least a portion of their weeks-long absence, and state disability insurance (SDI) programs that could provide partial wage replacement for the remainder of their time away from work. Although not a lot of places have SDI programs, a good number of states and cities require employers to provide short-term paid time off benefits employees can use when they are ill, and more states are starting to require longer-term paid family-medical leave for more serious illnesses, which might apply. A newer trend to keep your eye on, especially if your California employees work in San Francisco, are laws requiring paid leave during a public health emergency. Sure, not all your employees may work in a state or city that requires paid leave, but maybe your company voluntarily offers paid leave benefits, like PTO or vacation, or partial wage replacement benefits, like short-term disability.
If you learn an employee could be out for a few weeks, you may want to let them know what options they have that could help them out physically, mentally, and financially. An employee might want to return to work too soon due to financial concerns, which could have unintended health and safety consequences for their coworkers. Take a look at carrots your company offers, like advancing vacation or PTO donation programs, or sticks it may be able to use, such as requiring a doctor’s note, fitness-for-duty test, or other medical certification before an employee can safely return to work. But don’t forget about middle-ground options that could keep the employee out of the workplace but working and paid, like work or training done remotely. In other words, let employees know their options while keeping yours open.
Potential Harassment and Discrimination Issues
While anyone can become infected with MPX, the current outbreak initially and primarily has affected gay and bisexual men and men who have sex with men. Accordingly, when dealing with MPX issues, employers should be mindful of federal, state and local laws that prohibit harassment and discrimination based on sexual orientation.
Employers also should take care to avoid discriminating against individuals who are disabled or perceived as disabled because they are exhibiting symptoms suggestive of having contracted MPX, as such discrimination could run afoul of the Americans with Disabilities Act (ADA) and similar state and local fair employment laws.
New Jersey’s Division on Civil Rights recently published FAQs to explain residents’ rights and protections against discrimination related to this disease. These FAQs include employment-related guidance on what reasonable accommodations an employee with MPX can ask for under the state’s anti-discrimination statute, and an employer’s responsibility for addressing harassment related to MPX, among other issues.
In addition, employers should be cognizant of confidentiality obligations applicable not only to MPX but also to other communicable diseases. For example, statutes such as the Family and Medical Leave Act and the ADA mandate that medical records relating to leaves of absence be kept confidential. State laws may impose similar restrictions. Unlike with COVID-19, the EEOC has not issued guidance that would allow employers to require disclosure of an employee’s MPX symptoms or diagnosis, and therefore the ADA’s usual limitations on medical inquiries remain in force.
So what can employers do? To help combat the potential stigma that some fear could accompany a MPX exposure or diagnosis, employers should consider:
- Providing relevant, reliable information about the disease and prevention from reputable sources such as the CDC, CDPH, NJ Department of Health, or other state and local health departments. In describing the virus, stick to the facts and emphasize that it can infect people of all backgrounds and demographics.
- Offering information about local testing and vaccination options and opportunities.
- Reminding employees about workplace anti-discrimination and harassment policies.
In conclusion, Concerned, while MPX may not pose the same level of risk as COVID-19, employers will want to keep an eye out for new developments to stay ahead of the curve.
1 Note that investigations could come from employee complaints or a reportable illness (i.e., hospitalization or death of an employee due to MPX).
2 Under the CDPH guidance, individuals with MPX who work in a setting of concern should not return to the workplace until all skin lesions have healed and any other symptoms have been resolved for at least 48 hours. The guidance also advises consultation with a healthcare provider or local health department before returning to work. In addition, employers whose workplaces and employees are covered by the Cal/OSHA Aerosol Transmissible Diseases Standard should consult those regulations for additional applicable requirements. Moreover, some workplaces may be subject to additional requirements mandated by their licensing and certification bodies.