Monkeypox was declared a public health emergency of international concern by the World Health Organization (“WHO”) on July 23, 2022, and a public health emergency by the United States government on August 4, 2022. As of the date of this publication, there are 18,417 confirmed reported cases in the US and an average of 337 news cases per day. Despite these designations and the increase in confirmed cases, little is known about Monkeypox and there is a significant lack of guidance for employers to rely upon. The following blog will address how employers can manage Monkeypox in the workplace, and the potential legal concerns that may arise.

Employer Guidance & Policies

To date, neither the state health department nor the federal Center for Disease Control (“CDC”) have released guidance for how to manage potential or confirmed cases of monkeypox in the workplace. That being said, the CDC does offer general information about the Monkeypox virus and how it spreads.

A person with Monkeypox will commonly experience a rash which may appear as pimples or blisters that may be painful or itchy. Other symptoms include, but are not limited to, fever, chills, swollen lymph nodes, exhaustion, muscle aches and backache, headache, respiratory symptoms, or flu-like symptoms. Employers should encourage employees to wash their hands frequently, increase sanitation practices, socially distance when practicable, and avoid close physical contact in the workplace.

Monkeypox can spread through direct contact with the Monkeypox rash, through objects or surfaces that have been used by someone with Monkeypox, or through contact with respiratory secretions from a person with Monkeypox. Notably, during the early stages of Monkeypox, it was reported to be a sexually transmitted disease, mainly between men who have sex with men. However, Monkeypox is not a purely sexually transmitted disease. While it can be spread through intimate contact, it can also be spread through non intimate contact, or contact with objects or surfaces.

As with the COVID-19 virus, employers are permitted to distribute information about the Monkeypox virus, how it spreads, preventative measures, and treatment options. That being said, the available information surrounding the Monkeypox virus is changing seemingly daily, and thus employers should regularly look to state and federal websites for updated guidance and to review information about the Monkeypox virus as it becomes available.

Monkeypox Testing

Although Monkeypox has been declared a public health emergency, this does not necessarily mean employers are permitted to test all employees for Monkeypox. Generally, employers cannot subject all employees to mandatory medical testing, absent demonstrating such testing is job-related and consistent with a business necessity. Medical testing includes, but is not limited to, temperature screenings and virus tests. Over the past two years, employers have used this language to require employees to test for COVID-19. However, on July 12, 2022, the Equal Employment Opportunity Commission (“EEOC”) released new guidance regarding COVID-19 testing and set forth a new 7-factor test to determine whether a particular employer may mandate COVID-19 testing. These factors include:

  • the level of community transmission,
  • the vaccination status of employees,
  • the accuracy and speed of processing for different types of tests,
  • the degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations,
  • the ease of transmissibility of the current variant(s),
  • the possible severity of illness from the current variant,
  • what types of contacts employees may have with others in the workplace or elsewhere that they are required to work, and
  • the potential impact on operations if an employee enters the workplace with the virus.

This new guidance, although limited to COVID-19 testing, provides employers a template to determine when Monkeypox testing may be appropriate to mandate. However, it is clear that a policy which requires all employees to test for Monkeypox at this time, regardless of the circumstances specific to the employer, would be improper.

Since broadly testing employees is not always an option, many employers are left wondering what to do if they suspect an individual employee has Monkeypox. First, the employer should assess whether the employee is physically entering the workplace, or whether they work remotely. Only employees who are physically entering the workplace should be tested at this time. Second, the employer must have a reasonable belief based on objective evidence that the employee might have the disease in order to require testing. This may include the presence of new, visible pimples or blisters on the person’s body. If the employer does have such a reasonable basis, they may require the individual employee to be tested for Monkeypox before entering the workplace. However, it is important to note that Monkeypox tests are not widely available at this time, and thus it may be difficult for employees to quickly return to work.

Discrimination and Harassment

As mentioned above, during the early spread of Monkeypox within the US, it was incorrectly reported that Monkeypox was a sexually transmitted disease which was spreading mostly through men who have sex with other men. We now know that Monkeypox can spread through non-intimate contact or contact with objects or surfaces touched by a person with Monkeypox as well.

However, given the misinformation regarding Monkeypox which persists today, employers should be aware of the discrimination or harassment which may be associated with the disease. This includes employees who are discriminated or harassed for being gay, or those who are perceived to be gay.

This is because employers are liable for both discrimination on the basis of sexual orientation, but also discrimination based on the perception of an individual’s sexual orientation. In other words, an employee can be discriminated for being gay, and for being perceived as gay, when such perceptions result in adverse employment actions or treatment. Accordingly, employers should prohibit any conversations or conduct which incorrectly link Monkeypox infections to homosexuality.

The attorneys at Fishel Downey regularly advise employers on issues related to employment policies and practices. If you have a specific question or scenario, and would like assistance, contact one of the attorneys at Fishel Downey Albrecht & Riepenhoff LLP at 614-221-1216.