What, if Any, Steps Should California Employers be Taking to Address the Monkeypox Outbreak

Topics: COVID-19, Discrimination, Harassment & Retaliation, Legal Information

Monkeypox is now a public health emergency. In July, the World Health Organization (WHO) declared Monkeypox an international public health emergency. Last week, Governor Newsom declared a California statewide State of Emergency as a result of the spread of Monkeypox in California.  

California is now closing in on 1,500 Monkeypox cases, with over half of the cases in the Los Angeles and San Francisco metropolitan areas. Cases are likely to rise in the coming weeks. Currently, statistics show that over 98% of the Monkeypox cases in California are in the male population. These same statistics demonstrate that over 95% of the California Monkeypox cases are with people who represent as gay and/or bisexual. 

Although Monkeypox is related to Smallpox, all the data suggests that Monkeypox is not as severe and does not have nearly the death rate of Smallpox. In addition, Monkeypox does not spread as easily as COVID-19. It is not considered an airborne transmittable disease, and it appears that it does not spread unless there is some direct physical contact. However, the symptoms from Monkeypox are quite difficult and painful and often last for at least two weeks, and sometimes much longer. In addition, the medical community has not yet done a lot of testing related to Monkeypox and much remains to be learned. 

Thankfully, the Monkeypox emergency does not trigger the same type or level of employer obligations that the COVID-19 pandemic did. At this time, there are no widespread requirements for California employers when it comes to addressing the Monkeypox emergency. However, California law generally requires all employers to maintain a healthy workplace and there are a number of steps that California employers and their human resources departments should now be taking as a result of the Monkeypox emergency. These steps include:

1. Monitor ongoing developments. Like COVID-19, the Monkeypox emergency is not static. If cases increase or new variants emerge, there may be additional steps that California employers become legally obligated to take, or at least may want to consider taking, even if not legally required. Note: Earlier this summer the CDC published Monkeypox guidelines for healthcare employers.
2. Have a plan if you have a Monkeypox case or outbreak at your place of employment or if someone was exposed. With well over 1,000 cases statewide, and the numbers likely to rise, there is a reasonable chance that an employee at your workplace will develop Monkeypox or be exposed to someone who has a case of Monkeypox over the next few months.
   1. Consider how you might address these questions, among others:
      • What if an employee reports to you that his/her roommate has Monkeypox – do you know how to respond and what questions you should and should not ask? Will isolation be required?
      • What if a customer reports to you that they were in your facility yesterday and today they were diagnosed with Monkeypox? What is the appropriate response and what inquiries need to be made?
      • If there is a Monkeypox case in your workplace or employees have been exposed, do you have a plan of action? Who will you notify?
      • What are the best steps to take to protect against the spread of Monkeypox in the workplace and how will you protect the privacy of the person who was exposed?  
      • In light of the fact that Monkeypox does not spread as easily as COVID-19, will quarantining or isolation be necessary when there is exposure, and if so under what circumstances? Note: CDF recommends that people who are diagnosed with Monkeypox isolate for the full duration of their illness.
      • What questions are appropriate to ask the employee who has been exposed to Monkeypox or is diagnosed to help minimize the risk of spread, while at the same time not getting too much information?
        • These are issues that should be considered now, before a case emerges or a potential exposure occurs. California employers should base their actions on the latest scientific recommendations from WHO and CDC and any California authorities, if such guidelines are published, and may want to work with experienced counsel in developing a plan of action for their HR department.  
3. Be wary of increased discrimination based on sexual orientation. Because Monkeypox is most prevalent in the LGBTQ+ community, there is serious potential for discrimination and harassment against individuals who identify as LGBTQ+, particularly if a Monkeypox case develops at your workplace. Inappropriate jokes from employees about Monkeypox and comments blaming the gay community for the outbreak will unfortunately not be unusual in many workplaces. Management and HR should have their antennas up on sexual orientation discrimination and harassment and be prepared to take appropriate action, if facts develop or accusations are made.  
4. Leave and pay issues may arise that employers must be prepared to address. Employees with Monkeypox may need leave and may qualify for FMLA/CFRA/Disability/Sick and other leave programs. In addition, infected employees or those that have been exposed to infected individuals may seek work-from-home arrangements so that they can continue to work and be paid. Employers must be prepared to respond to these requests in a way that complies with applicable laws, ensures that these arrangements are applied consistently, and implement practices and solutions in a manner that is consistent with their general policies and what has been done in other similar situations.  

The Monkeypox emergency is not equivalent to the COVID-19 pandemic, but it is not something that California employers should completely ignore either. If you have any questions about what, if anything, you should be doing at your workplace as a result of the Monkeypox emergency, feel free to contact the author of this article, or any CDF attorney. As further developments occur in this area, we will update this article.