Employers Shouldn’t Monkey Around When It Comes To MonkeyPox

What do employers need to think about when it comes to monkeypox?

Declared as a public health emergency earlier this month, I can see the collective thought bubble in the minds of employers when they contact employment counsel to discuss a plan of action when it comes to monkeypox: “here we go again.”

In the last gasp of summer, I bring to you, friends and employers, these considerations about monkeypox in the workplace:

If an employee contracts monkeypox, remember the interactive process.

The Americans with Disabilities Act (ADA) requires employers to engage in the interactive process with employees who suffer from a physical or mental disability to determine what, if any, reasonable accommodations exist that it could provide so that the employee can perform the essential functions of the their job.

What is the interactive process? In the words of The Fray: “it’s just a talk.”

As I told the Society of Human Resources Management (SHRM) recently,

Employers should communicate with the employee to determine if there are reasonable accommodations it can provide without undue hardship to the business…Remote work and/or paid or unpaid leave for a certain period of time may be a reasonable accommodation that an employer can provide to an employee who must isolate while symptomatic. I cannot say enough about the importance of continuing to engage in the interactive process. Employers do not want to drop the ball on continuing to engage in the interactive process.

https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/monkeypox-longterm-leave.aspx

If a disabled employee requests a reasonable accommodation, an employer must provide it unless doing so would cause “undue hardship,” defined as significant difficulty or expense for the employer given its size, financial resources, and the needs of the business. 

We talked about this at length with respect to COVID-19 here.

Employers may need to consider leave and must treat medical information confidentially and with care.

As I conveyed to a SHRM writer earlier this month:

Depending on the severity [of the virus], it may be a ‘serious health condition’ under the Family and Medical Leave Act or a ‘disability’ under the ADA,” she said, “in which case, the same confidentiality provisions that apply to COVID-19 would apply to those afflicted with monkeypox. That is, test results must be kept confidential and in a separate file, not just in the employee’s personnel file.”

https://www.shrm.org/hr-today/news/hr-news/pages/monkeypox-at-work-keep-ada-guidelines-in-mind.aspx

Work with your Human Resources (HR) Department. Similar to the COVID-19 pandemic, HR should consider minimizing data retention, since the ADA requires employers to keep all medical information confidential.

There are also state privacy laws that may play into this analysis, too, which our blog discussed here.

Depending on the state and the employee’s condition, paid leave might be required.

As I told SHRM in a later article about monkeypox—employees may work in states that have mandatory paid or unpaid sick leave, and “many employers simply provide a certain amount of paid or unpaid sick leave in their employee handbooks. Employers can allow employees to use vacation or paid time off leave, too. The FMLA [Family and Medical Leave Act] is possible, if the employee is eligible, and the employer employs 50 or more within a 75-mile radius. Short-term disability is an option, as well.”

Employers can always provide more paid or unpaid leave than required—and may want to, depending on the severity of the illness.

I also recommended that employers update their safety policies.

During the COVID-19 pandemic, most employers created detailed safety policies to inform employees about their stance on symptoms, testing, screening, masking, leave, quarantine, cleaning, and the like.

Now, organizations should consider revising their COVID-19 pandemic policies to include information on what monkeypox is and is not, its symptoms, how it is transmitted, and the workplace policy governing attendance for employees with monkeypox symptoms or diagnosis.

I am no medical expert. The Centers for Disease Prevention Control (CDC) lists the signs and symptoms of monkeypox. Take a look.

Image by Gerd Altmann from Pixabay

Be alert to sexual orientation discrimination and harassment.

Monkeypox reminds me of the 1990’s AIDS crisis and movies like Philadelphia (1993) where a law firm fires the main character, Tom Hanks, who develops visible lesions caused by the HIV/AIDS virus.

Discrimination or harassment based on a person’s sexual orientation violates Title VII of the Civil Rights Act of 1964 (Title VII) and most states’ human rights laws. Now that the CDC and the media have reported that monkeypox is spread primarily through sex between men, employers must be cognizant about potential discriminatory practices related to monkeypox.

As I explained to SHRM, employers must “[b]e on the lookout for sexual-orientation discrimination, harassment and retaliation, since the CDC has said that monkeypox can spread through sex between two men…HR should be sure to investigate any such complaints and follow their policies.” 

Sexual Harassment Prevention 101 can help explain how employers should effectively handle complaints of unlawful harassment. And earlier this year, CVS provided a master class about how to investigate harassment claims.

Employer Takeaway

Employers fatigued by COVID-19 considerations need to be alert. Like COVID-19, monkeypox raises many legal implications under federal (the ADA, FMLA, and Title VII), state, and local law. Consult with counsel and get it right.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.