Less than two and a half years after proclaiming a state of emergency related to COVID-19, Governor Newsom has proclaimed a state of emergency in response to the ongoing monkeypox (“MPX”) outbreak. While the number of MPX cases in California is relatively small compared to the number of COVID-19 cases and the outbreak less likely to threaten the continuity of agency operations, public employers must now manage workplace health and safety concerns and legal risks associated with both viruses.
The purpose of this post is twofold: (1) to educate public employers about MPX, so that they can inform their employees about the virus, its symptoms, and spread; and (2) to advise employers about practical issues and legal concerns regarding MPX in the workplace.
What is MPX?
According to the Centers for Disease Control and Prevention (“CDC”) and California Department of Public Health (“CDPH”), MPX is part of the same family of viruses as variola, which causes smallpox.
The symptoms associated with MPX are similar to, but less severe than, those associated with smallpox, and include the following: (1) rash or sores; (2) fever; (3) chills; (4) swollen lymph nodes; (5) exhaustion; (6) muscle aches and backache; (7) headache; and (8) respiratory symptoms (e.g., sore throat, nasal congestion, or cough)
Initially, an individual with MPX will typically present flu-like symptoms, such as fever, swollen lymph nodes, exhaustion, and body aches. One to three days later, most individuals with MPX develop a rash or sores, which look like pimples or blisters and may be painful and itchy. The rash or sores may take two to four weeks to “fully heal”, which means that the sores have scabbed over, the scabs are off, and a fresh layer of new skin has formed underneath.
MPX can be transmitted in several different ways by individuals who are in their infectious period (i.e., the period between presenting symptoms of the disease and having sores that “fully heal”).
MPX can be transmitted by either direct contact, including skin-to-skin contact, contact with body fluids, and contact with contaminated items, or by contact with respiratory droplets as the result of “prolonged, face-to-face contact.”
The risk of transmission is heightened when engaged in sexual activity where more than one mode of transmission is possible, if not likely.
Pursuant to an August 18, 2022 CDPH order, MPX cases must isolate at their home or place of residence and not return to work until they can satisfy the criteria set forth under one of two tests.
Under the first test, an individual must satisfy each of the following six criteria:
- Any fever or respiratory symptoms have been resolved for at least 48 hours;
- No new lesions have appeared for at least 48 hours;
- Any lesions that cannot be covered, such as those on the face, are “fully healed”;
- Employment does not involve direct physical care or contact with others;
- Employment is not in a “setting of concern”; and
- Virtual work is not possible
If an individual cannot satisfy any of the six criteria enumerated above, the individual may return to work if they can satisfy both of the criteria under the second test as provided below:
- Skin lesions are “fully healed”; and
- All other symptoms, including but not limited to fever and respiratory ones, have been resolved for at least 48 hours.
If the MPX case is returning to work at a “setting of concern,” CDPH also advises that the individual consult with their healthcare provider or local health department before returning to work.
How Should Public Employers Approach MPX?
Although MPX is very different from COVID-19, public employers may draw on lessons learned from COVID-19 and apply best practices from their response to that communicable disease in order to improve workplace health and safety related to MPX.
One of the most important health and safety measures that employers can take is to educate their employees about the virus.
The CDPH has developed a fact sheet that provides useful information about MPX, its symptoms and transmission and ways to reduce the risk of contracting or transmitting the virus.
Employers should consider posting, mailing, emailing, or reading the fact sheet as a means by which to educate their employees about the virus and improve workers’ understanding of the risks associated with the virus. Employers should consider supplementing the general information provided on the fact sheet with information specific to the employment context, such as the return-to-work criteria discussed above.
Responding to MPX Cases
If an employer becomes aware of that an individual with MPX was present at one of its facilities, the employer should undertake the following steps in order to reduce the risk of further spread of the virus:
- Communicate with Employees and Employee Organizations about Workplaces Exposures – Employers should provide notice to employees (including volunteers and contractors) and employee organizations in the event of a MPX exposure at work. Employers should provide fact-based information about the exposure, including the time period that the individual was present in the workplace during their infectious period. Employers should not identify the MPX case or provide any personally identifiable information that could be used to identify them.
- Respond to the MPX Case – Employers should undertake the following in order to respond to MPX cases at work:
- Instruct MPX cases to immediately leave the workplace or remain at their home or place of residence, if they are not at work.
- Clean and disinfect any objects and surfaces that MPX cases may have touched during their infectious period.
- Follow CDPH return-to-work protocol before permitting MPX cases to discontinue isolation and return to work.
- Identify Employees who Might have been Exposed to MPX — Employers should work with their local health department (typically the local County Department of Public Health) to identify and monitor any employees, volunteers, or contractors who might have had close contact with the MPX case. As with COVID-19, contact tracing may identify other individuals who were exposed to the virus, which may limit the further transmission of the virus in the workplace and prevent further disruptions to the employer’s operations. In certain instances where there is a high-degree of exposure to a MPX case, post-exposure vaccination may be advisable to the individual who had close contact.
Legal Issues Implicated by MPX
In addition to managing workplace health and safety concerns related to MPX, employers must be mindful of the legal risks associated with their responses to the virus. Fortunately for employers, the laws implicated by MPX are the same as those affected by COVID-19 and the responses are substantially similar if not the same.
Maintain the Confidentiality of MPX Cases and Close Contacts
The Confidentiality of Medical Information Act (“CMIA”) precludes employers from disclosing the identity of or other personally-identifying information about the MPX cases and individuals who may have had close contact with MPX cases.
While employers should provide notice of a workplace exposure, employers need not and should not identify the individual who was the MPX case, or anyone with whom that individual may have had close contact while at the employer’s worksite.
Employers should advise managers and supervisors who may be aware of the identity of the MPX case and close contacts to keep such information strictly confidential and only share it with Human Resources.
Allow MPX Cases with Paid Sick Leave to Use Such Leave
While the Family Medical Leave Act (“FMLA”) requires that employers provide unpaid leave to employees who have contracted MPX and have not exhausted such leave, there are currently no federal or state laws obligating employers to provide paid leave to MPX cases.
However, employees who have not exhausted the paid sick leave to which they are entitled under the Labor Code or by contract with the employer must be permitted to use such leave while they are in their infectious period and precluded from working in-person at the employer’s facilities. Employers must allow such employees to use paid sick leave, if the employee elects to use such leave rather than take unpaid leave.
Relatedly, employers that have elected to provide COVID-19 cases administrative or COVID-19 leave that exceeds requirements related to COVID-19 Supplemental Paid Sick Leave may also consider expanding such policy to cover employees who are required to isolate after contracting MPX.
Engage MPX Cases in the Interactive Process
Individuals who contract MPX may be entitled to work-related accommodations under the Americans with Disabilities Act (“ADA”) and the Fair Employment and Housing Act (“FEHA”).
Employers should contact employees with MPX in order to engage such employees in the interactive process and determine whether the employee can be accommodated. For employees who are able to perform their job duties remotely, but are unable to do so in in person because they cannot satisfy the return-to-work requirements set forth by the DPH, employers should consider allowing the employee to work remotely as a reasonable accommodation. For employees who are unable to perform their job duties remotely, employers should consider other accommodations, including unpaid leave.
Employers should instruct managers and supervisors to work with Human Resources in order to discharge their responsibilities as part of the interactive process.
Limit Inquiries and Medical Exams Related to MPX
The ADA and FEHA limit the circumstances under which an employer may make inquiries about an employee’s medical condition or require that employees submit to medical testing. In order for such inquiries and tests to be lawful, they must satisfy the applicable standard which requires that the inquiry or test must be both job-related and consistent with business necessity.
Therefore, prior to making any inquiry about an employee’s MPX status or requiring an employee to be tested for MPX, employers should be sure that such inquiry or test satisfies the two-part standard. While inquiries and tests that are intended to promote workplace health and safety generally satisfy this standard, it would be prudent for employers that are considering making such inquires or requiring such tests to consult with legal counsel before doing so.
Employers should advise managers and supervisors against inquiring whether any employee has MPX.
Employers with questions about MPX or how to respond to MPX in the workplace should contact a trusted legal counsel for additional advice and counsel on this subject.