On August 1, 2022, Governor Gavin Newsom declared a state of emergency to support California’s ongoing response to the monkeypox virus. In doing so, California joins the World Health Organization, New York, Illinois and other localities in recognizing the seriousness of the outbreak and the need for a coordinated response to the virus, including increased vaccination capacity and resources for outreach and education. In the wake of the COVID-19 pandemic, employers are asking what they should do in the workplace to address monkeypox. Since the COVID-19 State of Emergency prompted health orders, emergency regulations and legislation, what are the rules for monkeypox?
Unlike COVID-19, no workplace safety rules specific to monkeypox exist currently — no public health orders, no emergency temporary standards and no supplemental paid sick leave. That doesn’t mean, however, that employers don’t have any obligations with respect to monkeypox in the workplace.
In California, every employer has an obligation to provide a safe and healthy workplace for employees. To that end, the law requires employers to develop, implement and maintain an Injury and Illness Prevention Program (IIPP), which contains a general plan to keep the workforce free from work-related injuries and illnesses. The IIPP should address, among other things, a system for identifying and addressing workplace hazards, including investigating and responding to injuries and illnesses in the workplace. At this time, employers should address monkeypox through their IIPP and general health and safety responsibilities.
The California Department of Public Health (CDPH) has a monkeypox resources page updated regularly. The CDPH guidance contains helpful information on the virus, including information about transmission, prevention, vaccination and how this virus compares to COVID-19. Employers can also review additional information from the Centers for Disease Control and Prevention (CDC), including the CDC’s isolation and prevention guidance. Employers should review the current guidance and evaluate their current health and safety policies to ensure they are taking appropriate steps to provide a safe and healthy workplace.
In addition to their IIPP, monkeypox may implicate leaves of absence laws, so employers should review those policies and prepare appropriately. Employees that get sick may use standard paid sick leave or other PTO available to them under company policies.
Under certain circumstances, leave under the California Family Rights Act (CFRA) and/or Family and Medical Leave Act (FMLA) may be warranted. It’s unclear if monkeypox is a “serious health condition” under the CFRA and FMLA, but employers should follow their standard CFRA/FMLA policies and request medical certification when appropriate to support the need for leave.
Sick employees may also be entitled to reasonable accommodations under the Fair Employment and Housing Act (FEHA). At this point, we don’t know if monkeypox would constitute a “disability” under the law, but the virus, or complications from it, could potentially be a disability under certain circumstances, so employers should be sure to follow standard reasonable accommodation rules and practices, which includes requesting supporting medical certification where appropriate.
While monkeypox cases are still relatively low, now may be a good time for employers to anticipate how they will handle cases in the workplace should they present themselves. As always, employers should ensure they are administering any policy in a nondiscriminatory manner and consult their legal counsel with any questions.