Employers are now monitoring developments related to two infectious diseases – COVID-19 and monkeypox. On August 4, 2022, the US declared the ongoing spread of monkeypox virus a Public Health Emergency, joining several states, including New York, California and Illinois, and the World Health Organization (WHO).

As of August 11, 2022, there were 10,768 total confirmed monkeypox cases in the US (compared to 92,426,945 total COVID-19 cases and a daily average new case rate of 130,945).

Employees may have questions about monkeypox, and employers may be evaluating what steps they can take in response to this new public health emergency. Employers may consider leveraging lessons learned from the COVID-19 pandemic, among other possible measures, to keep workers safe.

Meanwhile, COVID-19 guidance and requirements continue to evolve. On August 11, the CDC released new guidance easing requirements for isolation and quarantine; the Equal Employment Opportunity Commission (EEOC) recently updated its guidance on testing; and states are extending various measures related to COVID-19. Employers are revisiting COVID-19 policies while being mindful of state and local requirements.

US declares monkeypox a public health emergency

What is monkeypox?

Monkeypox is a rare viral infection first identified in 1958. In recent months, there has been an increase in cases where monkeypox is not commonly found, including Europe and the US. As of this writing, monkeypox has been reported in every state except Wyoming.

Monkeypox virus is part of the same family of viruses as variola virus, the virus that causes smallpox. According to the CDC, monkeypox symptoms are similar to smallpox symptoms but milder, and monkeypox is rarely fatal. The virus can cause flu-like symptoms and/or a distinct rash that can be bumpy or fluid-filled on the face, body, genitals, arms and legs. They may be painful, painless or itchy. People with monkeypox may develop symptoms including fever, headache, muscle aches, exhaustion or swollen lymph nodes.

How is monkeypox spread?

According to the CDC, monkeypox can spread from person to person through:

  • Direct contact with the infectious rash, scabs or body fluids
  • Intimate physical contact, such as kissing, cuddling or sexual contact
  • Sharing items (eg, clothing, towels or bedding) used by someone who has symptoms
  • Respiratory secretions during prolonged, face-to-face contact

Monkeypox is also thought to be most contagious when symptoms like a rash are present, making it easier for people to know when to stay away from others to prevent the spread of the virus. A person with monkeypox can spread it to others from the time symptoms start until the rash has fully healed and a fresh layer of skin has formed. The illness typically lasts 2 to 4 weeks.

Scientists are still researching whether the virus can be spread when someone has no symptoms and how often monkeypox is spread through respiratory secretions.

What can employers do now?

Under OSHA, employers have a general duty to provide a work environment that is “free from recognized hazards that are causing or likely to cause death or serious physical harm.” As of the time of this writing, the Occupational Safety and Health Administration (OSHA) has not issued guidance regarding monkeypox. The Centers for Disease Control (CDC), however, has provided guidance that may be instructive. Employers can also draw on lessons learned from the COVID-19 pandemic to respond to this latest public health emergency.

Communicating with employees

Employers may want to develop a communications plan to address employee concerns about monkeypox. This could include providing workers with clear information about monkeypox and how to prevent transmission. According to the CDC, people can protect themselves and others by:

  • Not coming to work if they have any symptoms or signs of monkeypox
  • Avoiding close, skin-to-skin contact with people who have a rash that looks like monkeypox
  • Avoiding contact with objects and materials that a person with monkeypox has used, including utensils, cups, clothing and towels
  • Washing their hands often with soap and water or using an alcohol-based hand sanitizer
  • Getting vaccinated if they have been exposed to monkeypox or people who may be more likely to get monkeypox

In preparing communications, employers may consider guidance and resources provided by the CDC and state or local health departments (eg, California Department of Public Health Communications Toolkit). In particular, the CDC is encouraging public health professionals and communicators to keep messages fact-based, to promote messaging that provides information on what monkeypox is and how it can be spread, and to take care to avoid marginalizing groups who may be at increased risk for monkeypox. In this regard, employers may want to review their anti-discrimination, harassment and retaliation policies and be prepared to respond promptly to any concerns.

While a monkeypox policy may not be necessary at this time, employers may elect to remind employees about the steps they are taking to protect the health and safety of employees against infectious diseases in the workplace. Some employers are adopting general infectious disease policies that state the employer’s commitment to sharing authoritative information about the nature and spread of infectious diseases, including symptoms and signs to watch for, and to protecting the workplace and maintaining operations during an outbreak.

In addition, unionized and non-unionized employers are encouraged to be mindful of their obligations under the National Labor Relations Act in regard to protected concerted activity by employees and state or local laws protecting off-duty speech and conduct before taking any adverse action against employees.

Maintaining good hygiene and infection control practices

As with any infectious disease, implementing good hygiene and infection control practices can help protect employees. Employers maintaining compliant COVID-19 protocols are well versed in these practices, which can include:

  • Promoting frequent and thorough hand washing, including by providing workers, customers and worksite visitors with a place to wash their hands (or alcohol-based hand rubs containing at least 60 percent alcohol if soap and running water are not immediately available)
  • Encouraging workers to stay home if they are sick
  • Encouraging respiratory etiquette, including covering coughs and sneezes
  • Providing customers and the public with tissues and trash receptacles
  • Discouraging workers from using other workers’ phones, desks, offices or other work tools and equipment when possible
  • Maintaining ventilation systems
  • Maintaining regular housekeeping practices, including routine cleaning and disinfecting of surfaces, equipment and other elements of the work environment

Preparing for exposure issues

While monkeypox transmission in the workplace is not considered a significant concern at this time based on what scientists know about how the disease spreads, employers are encouraged to prepare for positive cases in the workplace. Steps may include:

  • Instructing any employee who becomes ill or who has been exposed to stay home and follow the CDC’s Isolation and Prevention Practices for People with Monkeypox
  • Considering whether any employees may have been exposed to the virus and need to take additional precautions. As noted above, this may be unlikely based on what scientists currently know about how monkeypox is transmitted
  • Designating someone knowledgeable to handle leave and accommodation requests
  • For those employers that do not currently offer sick leave to their employees, considering non-punitive “emergency sick leave” policies
  • Requesting medical documentation to show whether and how an absence relates to an infection and when an employee can return to work consistent with company policies
  • Maintaining confidentiality of medical information as required by federal and state laws
  • Monitoring for additional guidance from federal, state and local agencies and health departments, including OSHA and the EEOC

Managing leave and accommodation requests

The leave landscape has evolved significantly in recent years in response to the COVID-19 pandemic, with states and cities across the country enacting new permanent and leave laws. These laws vary and may impose new paid sick leave for employees or family members, expand the definition of family members for purposes of family leave or allow leave for any reason.

Significantly, some state and local laws provide for expanded eligibility and leave rights during public health emergencies. For example, San Francisco’s Public Health Emergency Leave Ordinance will, effective October 1, 2022, require most San Francisco employers with 100 or more employees worldwide to provide “public health emergency” leave to employees who perform work within the geographic boundaries of the city. A “public health emergency” is defined as a local or statewide health emergency related to any contagious, infectious or communicable disease, as declared by the city’s local health officer or the state health officer pursuant to the California Health and Safety Code, or an Air Quality Emergency.

Employees may also be entitled to leave under the Family and Medical Leave Act (FMLA) and/or ADA or similar state laws.

Given the various laws and potential scenarios, employers are urged to carefully review the specific facts and circumstances of each employee’s situation when evaluating leave requests and to remind supervisors and managers about how to handle leave and accommodation requests and non-discrimination and non-retaliation obligations.

COVID-19 measures continue to evolve

On August 11, the CDC released updated COVID-19 guidance easing certain requirements based on high levels of immunity and the availability of effective COVID-19 prevention and management tools that have substantially reduced the risk of severe illness. According to the CDC, while the pandemic is not over, the guidance is intended to help move us “to a point where COVID-19 no longer severely disrupts our daily lives.”

The CDC’s new Summary of Guidance for Minimizing the Impact of COVID-19 on Individual Persons, Communities, and Health Care Systems:

  • Recommends that persons exposed to COVID-19 wear high-quality masks for ten days and get tested on day five. Previously, the CDC recommended that persons exposed to COVID-19 who were not up to date with their vaccinations quarantine for at least five days
  • States that infected persons may end isolation after 5 days when they are without a fever for at least 24 hours without the use of medication and when all other symptoms have improved. In this case, infected persons must continue to wear a mask or respirator around others at home and in public until they receive 2 consecutive negative test results taken at least 48 hours apart (which may mean they continue masking longer than 10 days since symptom onset)
  • Drops its recommendation that people stay at least six feet away from others to reduce the risk of exposure. According to the CDC, persons at high risk for severe illness can consider avoiding crowded areas and minimizing direct physical contact, particularly in settings where there is a high risk for exposure
  • Emphasizes the importance of being up to date on COVID-19 vaccinations
  • Continues to recommend masks in areas where community transmission is deemed high or if a person is considered at risk of severe illness
  • Recommends that case investigation and contact tracing be limited to hospitals and certain high-risk congregate settings
  • Notes that, when considering whether and where to implementing screening testing of asymptomatic persons, that public health officials prioritize high-risk congregate settings and include all persons, regardless of vaccination status

It remains to be seen whether OSHA will update its guidance based on the CDC’s recommendations. Employers are also encouraged to review state and local guidance and orders, which may require different and more stringent measures (eg, California’s ETS). Nonetheless, the CDC’s updated guidance is a welcome development for employers seeking to maintain a safe work environment and ensure that healthy employees can report to work.