Monkeypox at Work: Keep ADA Guidelines in Mind

Kathy Gurchiek By Kathy Gurchiek August 4, 2022
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Monkeypox at Work: Keep ADA Guidelines in Mind

​Employers in the U.S. are reminded to keep the Americans with Disabilities Act (ADA) in mind as monkeypox spreads throughout the U.S. and into the workplace.

Under the ADA, employers must keep employee medical information confidential, according to Sharon Rennert, senior attorney advisor at the U.S. Equal Employment Opportunity Commission.

The ADA is a federal civil rights law that prohibits discrimination against people with disabilities in everyday activities. There are no ADA implications, for example, if an employer wants to disseminate educational materials to their workforce about monkeypox, Rennert noted.

Employers also should keep the ADA in mind during the hiring process so that all applicants and potential hires are treated equitably. If a job offer has been made, "under the ADA, as long as all applicants hired for the same position are subject to the same disability-related inquiries, then an employer is free to ask whatever it wants—including, 'Do you have monkeypox? Have you been exposed to monkeypox?' at that post-offer stage," Rennert said.

"If they're going to ask employees certain questions that are considered disability-related inquiries under the ADA, then the employer needs to be able to show [those questions are] job-related and consistent with business necessity," she added.

However, employers do need to exercise caution when they start asking for medical information—and keep that information private.

"If an employer is asking about symptoms, if the person was diagnosed with monkeypox, [has] been vaccinated for monkeypox—all that is medical information subject to the ADA confidentiality provision," Rennert said.

For example, an employer should not report at a general staff meeting the names of employees who have been vaccinated or who have been diagnosed with monkeypox, she explained. 

[SHRM members-only how-to guide: How to Handle Communicable Diseases in the Workplace]  

Amy Epstein Gluck, employment counsel and a partner at law firm FisherBroyles in Washington, D.C., advised handling medical information with care.

"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."

She also recommended that employers update safety policies they created during the COVID-19 pandemic to include information on what monkeypox is and isn't, its symptoms, how it is transmitted, and the workplace policy governing attendance for employees with monkeypox symptoms or diagnosis.

There have been 6,326 confirmed cases of monkeypox in the U.S. as of Aug. 2, according to the Centers for Disease Control and Prevention (CDC). Those cases include individuals who tested positive for either the monkeypox virus or orthopoxvirus, a genus of DNA viruses that infect humans and animals. Around the globe, there have been 25,391 confirmed cases.

New York reports the most confirmed cases in the U.S.—1,617—followed by California with 826. Spain is one of the world's worst-hit countries with 4,298 cases.

The virus begins with flu-like symptoms and a week later a rash develops on the face and expands to the extremities, NPR reported. The lesions can be quite painful.

While the virus is usually not fatal, complications may include:

The virus can be transmitted by touching items that came into contact with the infectious rash or body fluids—such as unwashed bedding and towels or sharing cups and plates that touched the infectious rash or body fluids, the CDC warns.

It also is spread through hugging, kissing and other intimate contact with someone who has symptoms.

"Although 98 percent of cases so far are among men who have sex with men, anyone exposed can get monkeypox, which is why WHO [the World Health Organization] recommends that countries take action to reduce the risk of transmission to other vulnerable groups, including children, pregnant women and those who are immunosuppressed," said WHO's Director-General Dr. Tedros Adhanom Ghebreyesus in a July 27 briefing.

Gluck cautioned employers against potential discriminatory practices related to monkeypox.

"Be on the lookout for sexual-orientation discrimination, harassment and retaliation, since the CDC has said that monkeypox can spread through sex between two men," she said. "HR should be sure to investigate any such complaints and follow their policies." 


Other SHRM resources:
Monkeypox: Who's at Risk at Work? SHRM Online, August 2022
Monkeypox Cases Rising in U.S. but Pandemic Not Expected, SHRM Online, July 2022
Memo: Preventing the Spread of Monkeypox, SHRM HR Forms

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