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Cal/OSHA Guidance Applicable to Employers Subject to the ATD
As monkeypox (MPX) continues to be an issue throughout California, Cal/OSHA issued guidance to assist in protecting employees. This guidance applies only to workplaces covered by the aerosol transmissible diseases (ATD) standard so, for now, employers not subject to the ATD are not required to follow these recommendations. See the guidance here.
Workplaces covered by the Cal/OSHA ATD standard include the following:
- Skilled nursing facilities
- Clinics, medical offices, and other outpatient medical facilities
- Home healthcare
- Long-term healthcare facilities and hospices
- Medical outreach services
- Paramedics and emergency medical services
- Medical transport
- Homeless shelters (including migrant shelters)
- Drug treatment programs
- Laboratories that perform procedures with materials that contain or are reasonably anticipated to contain aerosol transmissible pathogens.
The guidance sets forth distinct requirements for outpatient clinics, dental offices, hospitals, and employers covered by the ATD standard. Since this guidance is very specific, we recommend reviewing the requirement directly from the Cal/OSHA guidance link above.
The guidance also provides that all employers covered by the ATD standard must provide and ensure the use of fit-tested respiratory protection, NIOSH-approved particulate respirator equipped with an N95 filter or higher, for employees who:
- Enter a room occupied by an airborne infectious disease case or suspected case, including MPX;
- Enter an airborne infection isolation room or area that is in use for airborne infection isolation.
- Are present during procedures or services on an airborne infectious disease case or suspected case, including MPX.
- Repair, replace, or maintain air systems or equipment that may contain or generate aerosolized pathogens.
- Work in an area occupied by an airborne infectious disease case or suspected case, including MPX.
- Are present during the decontamination of an area where an infected patient or client was located?
- Work in a residence where an airborne infectious disease case or suspected case, including MPX, is known to be present.
- Are present during the performance of aerosol-generated procedures on a patient suspected or confirmed to have an airborne infectious disease such as MPX.
- Are present during the performance of aerosol-generating procedures on cadavers that may be infected with aerosol-transmissible pathogens (powered air purifying respirator or better).
- Perform a task for which the biosafety plan or exposure control plan requires the use of respirators.
- Transport an airborne infectious disease case or suspected case, including MPX, within a facility or in an enclosed vehicle when the patient or client is not masked or;
- Handle linen potentially contaminated with MPX unless effective procedures are used that prevent the release of virus particles.
Covered employers must also provide personal protective equipment (PPE) to employees exposed to a person with or suspected to have MPX including gowns, gloves, and eye protection.
Finally, covered employers must implement written procedures for exposure incidents. For each incident, the following obligations will apply under the ATD standard:
- Notify workers who had a significant exposure of the date, time, and nature of the exposure.
- Provide a post-exposure medical evaluation by a physician or other licensed healthcare professional (PLHCP) knowledgeable about MPX, including appropriate vaccination, prophylaxis, and treatment.
- Provide post-exposure prophylaxis (i.e., vaccination for MPX) as soon as possible; often this is done through the local health department.
- Report the exposure to the local health officer.
- Remove the employee from the workplace if the PLHCP or local health office recommends precautionary removal. Maintain the employee’s pay, rights, benefits, etc. during the precautionary removal.
If your business is not covered by the ATD standard, there are no laws or regulations dictating how employers should respond to an MPX exposure or positive case. The guidance issued for businesses subject to the ATD states that Cal/OSHA considers MPX a new workplace hazard subject to an employer’s duty to assess, correct and train employees on hazards. Employers should take any reported MPX cases in their workplace seriously. If an employee becomes ill, the employer should instruct the employee to consult their healthcare provider, stay home and isolate per orders of their medical team.
California Public Health Department Guidance
The California Department of Public Health (CDPH) has issued MPX isolation guidance which includes suggestions regarding when workers may end isolation and return to work. The guidance applies broadly, not just to workplaces, but gives employers some guidance on MPX symptoms, transmission, prevention, and isolation. See this page on the CDPH website for details.
The agency recommends that workers not return to work until all of the following criteria are met:
- Any fever or respiratory symptoms have been resolved for at least 48 hours.
- No new lesions have appeared for at least 48 hours.
- Any lesions that cannot be covered, such as those on the face, are fully healed (i.e., scabs have fallen off and a fresh layer of skin has formed at the lesion sites).
The CDPH guidance provides that workers may return to work once the above criteria are met provided that:
- The employee’s work does not involve direct physical care or contact with others. For example, massage therapists, estheticians, et cetera.
- The employee’s workplace is not a “setting of concern” (such as healthcare settings, child care, schools, or certain congregate housing situations) and virtual work is not possible.
The CDPH recommends that people resuming activities after isolation wear a mask around others, avoid crowded settings, and cover unhealed lesions.
People exposed to someone infected by the MPX virus can continue their routine daily activities like going to work or school if they do not have signs or symptoms of MPX.
Because isolation periods and symptoms can vary, an employee may be unable to work or work in person, for a few weeks. In these cases, the employer should consider whether the employee is entitled to leave under the California Family Rights Act (CFRA) or the Family Medical Leave Act (FMLA) which would provide weeks of job-protected leave to employees with a serious health condition. In these cases, an extended leave of absence might also be a reasonable accommodation because of an employee’s disability.
There are no MPX-specific paid leave laws or regulations that apply to employees with MPX (other than San Francisco’s PHELO law), so employees should consider using California’s Healthy Workplace, Healthy Families sick leave law, their employer’s paid sick leave or PTO, or possibly State Disability insurance programs which could provide partial wage replacement.
Finally, employers should be aware of confidentiality obligations applicable not only to MPX but also to other communicable diseases. For example, statutes like the FMLA, CFRA, and the ADA mandate that medical records related to leaves of absence be kept confidential. Unlike with COVID-19, the EEOC or the DFEH have not issued guidance that would allow employers to require disclosure of an employee’s MPX symptoms or diagnosis, and therefore the ADA’s usual limitation on medical inquiries remains enforced.
To help combat the potential stigma that some fear could accompany an MPX exposure or diagnosis, employers should consider:
- Providing relevant, reliable information about the disease and prevention from reputable sources such as the CDC, CDPH, or Cal/OSHA. In describing the virus, stick to the facts and emphasize that it can infect people of all backgrounds and demographics.
- Offering information about local testing and vaccination options and opportunities.
- Reminding employees about workplace anti-discrimination and harassment policies.
While MPX may not pose the same level of risk as COVID-19, employers will want to keep an eye out for new developments to stay ahead of the curve.