LawFlash

How the Monkeypox Outbreak Differs from the COVID-19 Pandemic: A Guide for Employers

August 24, 2022

As US federal and local governments have declared monkeypox to be a public health emergency, employers attuned to responding to the COVID-19 pandemic may be left wondering what protocols to implement before and after a positive monkeypox case. For employers in particular, there are several key differences between the COVID-19 pandemic and the 2022 monkeypox outbreak.

The federal government recently declared monkeypox to be a public health emergency on the heels of similar declarations by multiple states and local jurisdictions. Many businesses may be wondering if they need to impose new health and safety measures, as they did in response to the COVID-19 pandemic, and what types of communications to send to employees who may be worried about, infected with, or exposed to monkeypox.

Employers have had to consistently adapt to new information about and protocols for COVID-19 and may be keen to implement similar mitigation tools for monkeypox cases. But before doing so, employers should understand that there are significant and nuanced differences between the two diseases, which has resulted in varying government guidance about how to respond. Employers tempted to apply a one-size-fits-all approach to infectious disease issues should be careful to ensure that their actions are appropriately tailored to each situation and based on available public health guidance.

According to guidance from the US Centers for Disease Prevention and Control (CDC), monkeypox is part of the same family of viruses as smallpox. Unlike COVID-19, which was a novel virus discovered in 2019 that the scientific community had no prior knowledge of, monkeypox was discovered in 1958, with the first case in humans recorded in 1970. A fair amount of research and knowledge about monkeypox has already been compiled, including regarding vaccines and treatment.

In a further and particularly noteworthy distinction from COVID-19, which is a highly transmissible airborne illness, monkeypox is largely spread through close, personal, often intimate, and/or skin-to-skin contact (e.g., during sex, from hugging/kissing). The CDC guidance notes that monkeypox can also be transmitted by touching objects, fabrics (clothing, bedding, or towels), and surfaces that have been used by someone with monkeypox or through contact with respiratory secretions.

As of now, there are more than 14,000 known cases of monkeypox in the United States and no known fatalities.

What Can Businesses Do Proactively?

In the absence of state or local orders that require businesses to implement safety protocols specific to monkeypox, many companies are proactively considering how to best communicate basic information and resources about monkeypox, including available CDC guidance on steps individuals can take to protect themselves and others. These communications can be beneficial if an employee is exposed to or contracts monkeypox because companies will have already provided guidance for individuals to follow and to which they can point if they get questions.

As the majority of individuals with monkeypox in the United States have identified as gay or bisexual men, and there is ample reporting on the spread of monkeypox among men who have sex with men, employees may be reluctant to report to their employers that they have been exposed to or infected with monkeypox. Therefore, proactive communication with employees about what to do if they are exposed or infected and what resources may be available to them can be helpful in mitigating the risk of further spread of monkeypox, reassuring employees who are worried about the seemingly new illness threat, and still respecting the privacy of others.

If an Individual Contracts Monkeypox

According to the CDC, people who contract monkeypox usually start displaying symptoms within three weeks of exposure. People with monkeypox typically get a rash that may be located on or near their hands, feet, chest, face, mouth, genitals, or anus. Other symptoms can include flu-like symptoms, such as fever, chills, swollen lymph nodes, exhaustion, muscle aches and backache, headache, or respiratory symptoms. Some individuals may have only a few symptoms, such as a rash, while others may experience all of these symptoms.

The CDC explains that monkeypox can be spread from the time that symptoms start until the rash has healed, all scabs have fallen off, and a fresh layer of skin has formed. This process typically lasts 2–4 weeks.

The CDC advises that individuals who have monkeypox symptoms should isolate at home until their rash has healed. To help prevent the spread of monkeypox, they should stay away from other people and not share things they have touched with others.

Given the guidance that individuals with monkeypox symptoms should isolate, companies may want employees to report having these symptoms. However, in another distinction from the COVID-19 pandemic, there is no guidance from the CDC, the Equal Employment Opportunity Commission (EEOC), or any other government agency that allows a business to require employees to 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, and it is not clear that the EEOC would deem a question about whether a person has monkeypox as job related. Still, employers can and should reiterate a more general requirement that individuals who are ill should not report to work.

Some employees, particularly those who cannot work remotely and need time off, may choose to report a monkeypox infection to their employer voluntarily. After receiving such a report, the employer can tell the employee to temporarily stay home and seek medical assistance.

If an employee is not able to stay at home (e.g., the employee cannot telework and does not have paid sick leave), the CDC outlines detailed precautions that the employee can take (including working in a separate space, covering lesions, and wearing a well-fitting mask), but 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 healthcare provider confirming they are fit to return.

Employers should also provide information about available leave benefits and the leave approval process to infected employees and communicate with management about employees’ approved time off. Employers should also remind managers about their company’s requirement to protect employee privacy.

Current Guidance on COVID-19 Exposure and Monkeypox Exposure

One of the most confusing aspects of COVID-19 was the ever-changing (and still-evolving) rules around what to do if someone is exposed to the virus. On August 11, the CDC eliminated the recommendation that any individual exposed to COVID-19 should self-quarantine, so long as the individual remains asymptomatic.

Previously the CDC had recommended a five-day, or longer, quarantine for anyone who was exposed to COVID-19 and not up to date on their vaccines and boosters. The CDC now recommends that all individuals who are exposed to COVID-19 but do not develop symptoms should wear a mask as soon as they learn they were exposed and should get tested at least five full days after their last exposure.

This change in policy is significant, as it eliminates the distinction between vaccinated and unvaccinated individuals, which previous CDC guidance emphasized. More information can be found in our recent LawFlash, How the CDC’s Updated COVID-19 Guidance Affects Employers.

For monkeypox exposure, CDC guidance explains that those who have been exposed to monkeypox should monitor their health for 21 days after their last exposure, but “individuals exposed to monkeypox virus 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 and to consult with their healthcare provider about potentially receiving post-exposure prophylactic treatment (i.e., the smallpox vaccine).

Additional Issues to Consider

While many employers spent a tremendous amount of time drafting and implementing workplace policies and protocols around COVID-19 (such as keeping exposed/infected individuals out of work), the same may not work for the monkeypox outbreak.

Employers should be aware of the following issues and limitations when responding to monkeypox:

  • Disability discrimination. 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 disability discrimination claims when treating someone infected with or exposed to monkeypox differently from other employees.
  • Sexual orientation discrimination. 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 men. To avoid possible sexual orientation discrimination claims, employers may consider communicating with managers about avoiding this stereotype and not treating gay men differently from other employees.
  • Privacy concerns. Comply with federal and state privacy requirements (including HIPAA for covered entities 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.
  • Benefit plan adjustments. Review benefits and leave plans to determine what benefits may be available for employees who test positive for monkeypox and whether any revisions to materials about benefits and leave are necessary.
  • Changing requirements. Designate an individual or team to routinely check for updated guidance from the CDC or other public health authorities. The COVID-19 pandemic has taught us that there can be rapid changes in guidance on appropriate steps employers should (or must) take in response to an illness outbreak.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

New York
Leni D. Battaglia
Daniel A. Kadish

Orange County
Daryl S. Landy

Philadelphia
A. Klair Fitzpatrick

Princeton
Emily DeSmedt

Washington, DC
Sharon Perley Masling
E. Pierce Blue
Kaiser H. Chowdhry