In the past two years, the COVID-19 pandemic has triggered significant societal shifts. Employers have had to adjust their workplace practices by adding new policies such as remote work, vaccine mandates, paid sick leave, and various other federal, state, and local requirements to accommodate.
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 and 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 and employees should understand their entitlements and obligations when they are feeling ill.
Morgan Lewis employment law attorneys shared the following guidance on how employers should communicate basic information about Monkeypox and resources for protecting employees while avoiding stigmatizing groups and at-risk individuals.
According to the CDC, monkeypox is part of the same family of viruses as smallpox. Unlike COVID-19, monkeypox is spreading mostly through close, personal, often skin-to-skin contact.
Employers Can Be Proactive
At this time, no state or local orders require businesses to implement safety protocols specific to monkeypox. The risk of transmission in most work settings is small. Nevertheless, to help protect employees and alleviate concern among the workforce, employers should consider communicating basic information and resources about monkeypox, including available CDC guidance on steps individuals can take to protect themselves and others. This can help remind employees of the importance of practicing good hygiene, available benefits if they become infected, and the need to respect the privacy of others.
If an Employee Reports Having Monkeypox
Unlike Covid-19, there is no guidance from the CDC, the Equal Employment Opportunity Commission, or any other government agency that allows an employer to require employees report when they have monkeypox. Under the Americans with Disabilities Act, employers are prohibited from making medical inquiries unless they are job-related and consistent with business necessity. Additionally, given the high rate of transmission among gay men and the perceived stigma regarding sexual orientation, employees may be hesitant to report a monkeypox infection. Still, employers can and should reiterate a more general requirement that individuals who are ill not report to work. Some employees, particularly those who cannot work remotely and need time off, may report a monkeypox infection to their employer voluntarily. After receiving a report, an employer can tell the employee to temporarily stay home and seek medical assistance.
The CDC generally advises individuals who have monkeypox to stay at home until symptoms have resolved and the monkeypox rash has healed. There are detailed CDC precautions that an employee can take which include working in a separate space, covering lesions, and wearing a well-fitting mask. However, the safest course of action is to have the employee stay home. Employers concerned about letting a previously infected employee return to work in person can request that the employee submit documentation from a health-care provider confirming they are fit to return.
Employers should also provide information to the infected employee about available leave benefits and the leave approval process. Employers should also communicate with the employee’s manager about the employee’s approved time off and remind managers about the company’s privacy requirements.
If an Employee Reports Exposure
CDC guidance states that those who have been exposed to monkeypox should monitor themselves for 21 days after their last exposure, but that they “can continue their routine daily activities—e.g., go to work or school—as long as they do not have signs or symptoms consistent with monkeypox.”
Employers should advise employees who have disclosed that they have been exposed to monkeypox to:
- Review the CDC guidance regarding symptoms to monitor
- Consult with their health-care provider about potentially receiving post-exposure treatment—i.e., the smallpox vaccine.
Although employers may be tempted to implement the same workplace restrictions that they have for COVID, like keeping exposed/infected individuals out of work, employers should be aware of the following issues and limitations regarding responding to the monkeypox outbreak:
- Be cautious to avoid disability discrimination, including against individuals who are perceived as disabled because they have monkeypox symptoms or may have been exposed to someone with monkeypox.
- Taking actions in line with CDC or other applicable government agency guidance will mitigate the risk of claims when treating someone with or exposed to monkeypox differently from other employees.
- Be mindful of the risk that employees will view monkeypox as a “gay” disease. The data shows that the virus is primarily spreading among men who have sex with other men. To avoid possible sexual orientation discrimination claims or “regarded as a person with a disability” claims, employers may consider communicating with managers about avoiding this stereotype or treating gay men differently than other employees.
- Comply with federal and state privacy requirements (including HIPAA and the Americans with Disabilities Act). These laws require employers to keep medical records relating to disabilities or other protected health information confidential and separate from employee personnel files.
- Review benefits and leave plans to determine what benefits may be available for employees who test positive for monkeypox and whether any revisions to these materials are necessary.
- Designate an individual or team to routinely check for updated guidance from CDC or other
public health authorities.
Masling, Kadish, and Chowdhry. (2022). What Employers Need to Know About Monkeypox. Bloomberg Law. https://news.bloomberglaw.com/class-action/what-employers-should-know-about-monkeypox
Sherz, Toro, Becker, and Alexander. (2022) What Employers Need to Know About Monkeypox. Harvard Business Review. https://hbr.org/2022/08/what-employers-need-to-know-about-monkeypox