Adele L. Abrams, Esq., CMSP
Will OSHA Regulate Monkeypox in the Workplace?
COVID-19 is not yet behind us, although many of the federal and state OSHA restrictions in public and in (non-healthcare) workplaces have been relaxed based on updated CDC guidance on distancing, masking and quarantining of “close contacts.” Is Monkeypox going to be the next hybrid public health/workplace health issue that OSHA must tackle? The odds are good.
OSHA has historically placed employers on notice that they have responsibility legally if transmissible diseases spread through a workplace and the employer fails to implement protective measures that are suggested by OSHA and NIOSH. Even before COVID-19, OSHA issued bulletins to guide employers on preventing the spread of the H1N1 influenza, and more recently alerted employers of outdoor workers about precautions needed to prevent transmission of the Zika virus by mosquitoes in some areas.
Now, indications are that OSHA is indeed developing Monkeypox guidance for employers, with release expected sometime in September 2022, even as existing COVID-19 guidance has been superseded by medical information and transmission trends. OSHA retains authority under Section 5(a)(1) of the Occupational Safety & Health Act of 1970 – the “General Duty Clause” (GDC) – to issue citations to employers who fail to protect exposed workers from any “recognized” workplace health or safety hazards that pose a risk of death or serious illness/injury, for which there is feasible mitigation, and where no other standards already apply. In addition to citations of up to $145,027 per exposed worker under the GDC, OSHA can also use existing standards such as recordkeeping, sanitation and respiratory protection to supplement worker protections.
The Biden Administration declared Monkeypox to be a public health emergency on August 4, 2022, which followed a similar declaration on July 23rd by the World Health Organization. New York, Illinois and California have also declared the illness to be an emergency at the state level. Monkey pox can be transmitted through skin-to-skin contact (including during sex), but also by breathing infectious respiratory droplets, or handling materials that have been contaminated with fluid from the pustules.
Monkeypox is not presently viewed by the Centers for Disease Control as being “an airborne transmissible disease,” unlike COVID-19. It is believed that Monkeypox patients are only contagious when symptomatic (not pre-symptomatic, as with COVID-19), but they may need up to four weeks out of the workplace to completely recover, as during that time they would be considered contagious unless their blisters are completely healed. This may lead to more business and school disruptions if spread continues unabated in the US, as well as employer obligations under the Americans with Disabilities Act and the Family and Medical Leave Act – both of which provide protections for patients as well as for family members who are caregivers.
The United States now leads the world in the number of Monkeypox cases (17,000 as of August 2022), and while the WHO noted that transmission rates globally are down 21 percent in August, rates in the United States continue to climb. In the United States, Monkeypox cases have now been identified in schools, daycare facilities and among hotel workers, who became infected from changing contaminated linens. As with COVID-19, the frontline health care workers have regular exposure warranting protection.
A OSHA spokesperson said that the agency is monitoring the situation, and urges employers to evaluate and follow current CDC guidance about precautions, treatment and vaccines. The agency anticipates that there will be fewer work-transmitted cases but that, in addition to the GDC citation exposure, employers must still record Monkeypox as an occupational illness if there is workplace transmission. The spokesperson added, “There is nothing inherent about Monkeypox that would exclude it from OSHA illness and injury reporting.” OSHA has indicated that Monkeypox cases would likely meet the criteria to be included on the employer’s “Privacy Log” which shields the identity of the sick worker from others, while still reflecting that the case occurred for OSHA purposes.
Adele Abrams will present a webinar on COVID-19, Monkeypox and infectious disease prevention in the workplace at 1pm ET on September 28th for Premier Learning Solutions. For more information, contact Adele at email@example.com.