Monkeypox and Employment Law: Legal Considerations for New York Employers
On August 4, 2022, President Biden declared a national public health emergency in response to the ongoing monkeypox outbreak. The announcement follows New York and other states having declared emergencies in the days prior. Already weary from the Covid-19 pandemic, New York employers now have to navigate the possibility of monkeypox spreading in their workplaces, as well as manage their already skittish employees who have faced workplace shut-downs and alternative working arrangements as a result of Covid-19. Even though at present monkeypox as an infectious disease seems to present less risk than Covid-19, employers still need to be prepared to address potential outbreaks in their workplaces. Company managers need to consider both the health and legal impacts of this new virus in the months ahead.
Monkeypox and its Spread:
According to the U.S. Centers for Disease Control and Prevention (CDC), Monkeypox is a disease caused by infection from the same family of viruses as the variola virus, which causes smallpox, although health officials report that it carries milder symptoms and is rarely fatal. The CDC advises that the virus can be spread through direct or intimate contact, such as with an infectious rash, scabs, or with body fluids. The virus is also spread through respiratory droplets during “prolonged, face-to-face contact, or during intimate physical contact, such as kissing, cuddling, or sex.”
Employers should regularly check for new Monkeypox information as it becomes available from the CDC and the World Health Organization. You can learn more about the virus by clicking here.
Although monkeypox is very different from Covid-19, there are similarities in its implications for employers. As with Covid-19, one of the first steps employers can take to reduce risk of transmission is to educate their employees on the monkeypox virus and precautions they can take to slow its spread.
Employers can also proactively adopt disinfection procedures similar to the procedures used against Covid-19. Routine cleaning and disinfecting of common surfaces and items touched by employees is recommended. In order maximize cleaning measures, the CDC recommends using “EPA-registered disinfectant in accordance with the manufacturer’s instructions.” CDC guidance also suggests that companies may want to encourage employees to consider vaccination against the virus. Frequent hand washing by employees is also recommended. Up to date guidance can be found here: https://www.cdc.gov
If an employee tests positive for monkeypox or starts exhibiting symptoms, the CDC recommends that the employee should immediately exit their place of employment, isolate, and contact a healthcare provider. If an employee tests positive or is presumed positive, the communicable period is from the time symptoms start until the bumps have healed and a new layer of skin has formed. According to the CDC, a person should isolate until their rash has completely healed and all scabs have fallen off, forming a fresh layer of skin, which unfortunately will impact the workplace and productivity at companies already weary from the economic impact of the Covid-19 pandemic.
Awareness of potential legal claims:
Similar to COVID-19, stigmas surround the virus and those infected make monkeypox not only a public health crisis but a potential harassment and discrimination issue for employers. While precaution should be taken for employees exhibiting monkeypox symptoms or who have come in close contact with infected individuals, employers should be aware of anti-discrimination laws and remain compliant with Title VII well as state and local discrimination laws. As with COVID-19, discrimination against employees in protected categories who exhibit monkeypox symptoms or who have contracted the virus should be avoided.
While a company may inform other employees in the workplace about a positive case of monkeypox in the office, the employer cannot disclose the employee’s identity or other identifying information (i.e., only essential information should be shared).
Employers should also be mindful of the American with Disabilities Act (ADA) as well as state and local laws while addressing any potential cases of monkeypox in the workplace. These laws may require a company to provide reasonable workplace accommodations for an employee with monkeypox. Employers will likely have to engage in an interactive dialogue to determine whether an employee is entitled to a reasonable accommodation and what the accommodation may look like, such as additional leave or a remote work accommodation.
Whether an employee is entitled to paid or unpaid leave under state or local laws, or the Family and Medical Leave Act (FMLA), will also be a consideration under circumstances where an employee tests positive and is required to isolate or quarantine. Employers may need to revisit their policies regarding leave and consult with an attorney about requirements for leave in circumstances where an employee tests positive for monkeypox as the spread continues in the United States.
Update Employment Policies:
For these reasons, employers should take the necessary steps to remain compliant with relevant laws while providing a safe, hazard-free environment for their employees. We strongly recommend that employers seek the advice of legal counsel to create strategies in compliance with local, state and federal laws. Companies should also consider updating their employee handbook or policies to include a response to infectious/communicable diseases and include monkeypox in the policies as well as guidance on reducing transmission, and a response plan if there is a spread of the virus in the workplace.
The employment law attorneys in our Labor and Employment Practice Group are always available for consultation regarding implementing new workplace policies. Contact us today at (914) 287-6161 or click here to learn more about how our expertise can help guide you through this latest health crisis.