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.
UPDATE: As of August 4, the Biden administration has declared monkeypox a national health emergency, on the heels of similar announcements by various states and localities as well as the World Health Organization.
The latest wave of the COVID-19 pandemic has barely been contained, yet employers are now being hit with employee inquiries related to monkeypox. As this virus spreads, states and localities are declaring emergencies while employers are struggling to determine how to respond to this new challenge, including what steps they should take to protect their employees in the face of potential outbreaks.
The good news is that, unlike COVID-19, the monkeypox virus is not as transmissible in the workplace, medical experts are more familiar with the virus's transmissibility and symptoms (because it is not a “novel” virus) and vaccines for monkeypox already exist. Employers should note, however, that the U.S. Occupational Safety and Health Act (OSHA) requires them to maintain a safe workplace for all employees and in all places of employment, and that individuals infected with monkeypox may require a longer recovery period as compared to COVID-19 and other common viruses. Employers should consider the following optional measures: providing time off for employees to get tested, offering leaves of absence for recovery, adding extra cleaning protocols, encouraging the use of personal protective equipment like gloves for common areas and educating their workforce on transmissibility of monkeypox.
What Exactly is Monkeypox?
The monkeypox virus is related to the virus that causes smallpox, but is much milder and rarely fatal. While the survival rate of monkeypox is 99%, anyone with a weakened immune system, children under the age of eight, people with a history of eczema or who are pregnant and/or breastfeeding may be more prone to serious illness.
The first human case of monkeypox was detected in 1970. Until the current outbreak, the virus was generally limited to countries in Central and West Africa and cases were mostly linked to international travel or to disease transmitted through imported animals. There are two strains of monkeypox, and the current outbreak is from the West African strain of the virus.
To date, there have been over 25,000 confirmed cases worldwide. Monkeypox has been reported in over 80 countries worldwide with over 6,000 reported cases in the United States. The only states without a reported case are Montana and Wyoming.
How is it Spread?
Monkeypox can be spread through direct contact with monkeypox rash, scabs, or bodily fluids. It often occurs through touching fabrics, objects, and surfaces that have been used or touched by someone with the virus. The virus is contagious until the rash has healed fully. The illness generally lasts 2 to 4 weeks. Medical professionals do not know if the virus can spread when a person is asymptomatic and are still researching whether it can be spread through respiratory secretions. More information on the virus can be found on the CDC’s webpage.
Prescribed antiviral medications can help treat the virus.
Signs and Symptoms
Symptoms of monkeypox include:
- Muscle aches and backache
- Swollen lymph nodes
- Respiratory symptoms (e.g., sore throat, nasal congestion, or cough)
- Rashes (near genitals, hands, feet, chest, face or mouth)
Symptoms generally start within three weeks of exposure to the virus.
Employees concerned about monkeypox should be encouraged to get the vaccine if it is available to them, and to consult local public health resources or their own health care providers to find out about availability and advisability of the vaccine. Employees also can be educated on preventing exposure, including:
- Not coming into work if they have any signs and symptoms of monkeypox.
- Avoiding skin-to-skin contact, including hugging, kissing, or having any direct contact with people who have a rash.
- Not sharing eating utensils or cups.
- Avoid touching other employees’ bedding, towels or clothing without wearing gloves or having other protection.
- Washing hands often with soap and water or using an alcohol-based hand sanitizer, especially before eating or touching one’s face and after using the restroom.
What Can Employers Do?
If employers have compliant COVID-19 protocols, there is little more for them to do other than educate their employees specifically on transmissibility and the signs and symptoms of monkeypox. Many of the same protective measures apply to both viruses. Evidence indicates that monkeypox is not likely to be transmissible in the workplace, especially because employers should still be cautioning employees not to share utensils or drinks and not to have extensive close contact with others due to the ongoing COVID-19 pandemic. Employers can take some of these specific steps to help prevent the spread of monkeypox:
- Employers can review their safety programs and emergency action plans to ensure they include infectious disease protocols and comply with OSHA and health and safety regulations.
- Employers can circulate information to employees reminding them of recommended hygiene practices and prevention measures.
- Employers can advise employees on how to protect themselves from being exposed to monkeypox.
If an employee becomes ill and/or the employer is informed that the employee has been exposed to someone with monkeypox, there are several things the employer can do:
- Instruct the employee to stay home and get medical assistance.
- Instruct the employee to obtain a fitness-for-duty notice from their health care provider before returning to work.
- Provide leave to employees until the incubation period is exhausted or they return with a fitness-for-duty notice. These leaves of absence should be administered consistent with the employer’s other leave of absence policies. If an employee is entitled to pay under a paid leave law (e.g., paid sick leave, mandatory paid time off, or San Francisco’s forthcoming public health emergency leave ordinance), the employer should provide leave for a confirmed positive case.
Limitations on What Employers Can Do
While each employer has a duty to provide a safe workplace, there are limitations on an employer's ability to respond to monkeypox specifically. Employers must be careful to avoid discrimination—including discriminating against individuals who are disabled or perceived as disabled because they are exhibiting symptoms suggestive of having contracted monkeypox, or individuals belonging to certain protected classes in which the virus is prevalent.
Employers should also be mindful of legal obligations and responsibilities that apply to situations arising not only with monkeypox but also with other communicable diseases. For example, certain statutes, such as the Family and Medical Leave Act and the Americans with Disabilities Act, mandate that medical records relating to approved leaves of absence be kept confidential. State laws may impose similar restrictions depending on the source of the information and the purpose for which it is gathered. Unlike with COVID-19, the EEOC has not issued guidance that would allow employers to require disclosure of an employee’s monkeypox symptoms or diagnosis, and therefore the ADA’s usual limitations on medical inquiries remain in force.
Employers should consult the CDC and public health authorities for more information or questions on how to reduce the chances of exposure to monkeypox, and what steps to take should an employee become infected.