By Adam R. YoungA. Scott Hecker, Patrick D. JoyceJames L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: OSHA’s Region III issued a Regional Emphasis Program (REP) instruction (CPL 2022-01 (CPL 4)) for Warehousing Operations, that went into effect on August 3, 2022 and “establishes policies and strategies to be followed when scheduling and conducting OSHA programmed regional emphasis inspections of warehousing, storage, and distribution yard operations.  Region III includes Pennsylvania, Delaware, West Virginia, and the District of Columbia.

Federal OSHA continues to shift enforcement towards warehousing, logistics, and e-commerce.  OSHA uses national and regional emphasis programs to target enforcement against specific industries and workplace hazards. OSHA’s new mid-Atlantic emphasis program reflects a new trend in OSHA enforcement targeting the warehousing industry, including indoor warehousing and inside or outside storage and distribution yards. OSHA explained that “with the rapid growth of e-commerce, the warehousing industry has significantly expanded. This emphasis program will address hazardous conditions these workers continuously face every day.”

The REP aims to reduce injury/illness rates at the targeted employers “by conducting comprehensive inspections to address hazards that may include those associated with powered industrial trucks, lockout tagout, life safety, means of egress, and fire suppression.” OSHA cites 2020 Total Case Rates (TCR) in these industries to justify the REP, explaining the TCR “for all private industry was 2.7 cases per 100 full-time workers. The rates for the industries included in this REP were 3.5 for beverage manufacturing; 4.8 for warehousing and storage; 4.0 for food and beverage stores; 4.3 for grocery wholesalers; and 5.5 for beer, wine, and alcoholic beverage wholesalers.”

OSHA emphasis program activities began on August 3, 2022, with a three month phase in until November 2022. The emphasis program is scheduled to continue through August 3, 2027.

The REP applies to warehousing, storage, and distribution yard operations, focusing on:

  • Manufacturing: Bottled and Canned Soft Drinks and Water (NAICS codes 312111 and 312112);
  • Manufacturing: Fluid Milk Manufacturing (311511);
  • Transportation: Refrigerated Warehousing and Storage (493120);
  • Transportation: General Warehousing and Storage (493110);
  • Retail Trade: Groceries (445110);
  • Wholesale Trade: General Line Grocery (424410);
  • Wholesale Trade: Meat and Meat Products (424470);
  • Wholesale Trade: Groceries and Related Products (424490); and
  • Wholesale Trade: Beer & Ale (424810).

OSHA will conduct programmed inspections against facilities with these NAICS codes, and will include facilities outside the identified warehousing and logistics NAICS codes where facilities operate powered industrial trucks in other warehousing, storage, and distribution yard operations.  OSHA may also expand existing inspections into a warehousing and logistics REP inspection.

Virginia and Maryland are OSHA state plans in the same OSHA Region, meaning that state agencies regulate occupational safety for private employers in the states. The Virginia and Maryland state OSHA agencies may choose to adopt the Regional Emphasis Program, but have not done so yet and are not required to do so.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Jennifer L. Mora and Frederick T. Smith

Seyfarth Synopsis As previously reported here, on February 22, 2021, New Jersey Governor Phil Murphy signed the “New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act” (CREAMMA), which amended the New Jersey Constitution to legalize recreational cannabis.

The law allows employers to conduct numerous forms of drug testing for cannabis, but limits an employer’s ability to rely on a positive cannabis test result in making employment decisions. It requires that a drug test include both “scientifically reliable objective testing methods and procedures, such as testing of blood, urine, or saliva” and a “physical evaluation.” The “physical evaluation” must be conducted by an individual certified to provide an opinion about an employee’s state of impairment, or lack of impairment, related to the use of cannabis. The law tasked the Cannabis Regulatory Commission with adopting standards for this “Workplace Impairment Recognition Expert” (WIRE), who must be trained to detect and identify an employee’s use or impairment from cannabis or other intoxicating substances and to assist in the investigation of workplace accidents.

On August 19, 2021, the Commission published its “Personal Use Cannabis Rules,” which said virtually nothing about employer drug testing practices. It did, however, suspend the physical evaluation requirement until the Commission “develops standards” for the WIRE. Although the law has been on the books for 18 months, the Commission has not adopted any standards.

Instead, on September 9, 2022, the Commission released interim Guidance to assist employers with making “workplace impairment” determinations. In the Guidance, the Commission highlights the need for employers to “establish evidence-based protocols for documenting observed behavior and physical signs of impairment to develop reasonable suspicion, and then to utilize a drug test to verify whether or not an individual has used an impairing substance in recent history.”

The Guidance advises that employers can “continue to utilize established protocols for developing reasonable suspicion of impairment and using that documentation, paired with other evidence, like a drug test, to make the determination that an individual violated a drug free workplace policy.” The Guidance goes on to remind employers that they cannot take employment action against an individual “solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid.” However, a positive test result can be considered when “combined with evidence-based documentation of physical signs or other evidence of impairment during an employee’s prescribed work hours.”

Fortunately, the Guidance provides best practices for employers to consider that will help them determine workplace impairment, at least until the Commission issues the WIRE standards, which include:

  1. Designating an interim staff member or a third-party contractor who is trained to determine impairment and qualified to complete the Reasonable Suspicion Observation Report developed by the State.
  1. Establishing a standard operating procedure for the completion of a Reasonable Suspicion Observation Report by an employee’s manager or supervisor or another manager or supervisor, with the assistance of the staff member described above.
  1. Continuing to use their own reasonable suspicion observation reports or checklists.
  1. Using cognitive impairment tests, “a scientifically valid, objective, consistently repeatable, standardized automated test of an employee’s impairment,” and/or an ocular scan. We find this last category to be confusing; we do not know how practical or effective the first and third options are in this context, and in our opinion, the science, while improving, has not led to a testing methodology that meets the second definition.

As more states and localities enact laws prohibiting employers from considering positive cannabis test results absent other evidence of workplace impairment, the need for a robust and defensible reasonable suspicion testing program is critical. While we await the Commission’s WIRE standards, New Jersey employers should consider modifying their drug testing policies and practices, providing training and documentation to managers tasked with making reasonable suspicion determinations, and determining the drug test most appropriate to use in conjunction with workplace impairment determinations. We will provide an update as soon as the new regulations are adopted.

By James L. CurtisA. Scott HeckerAdam R. Young, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: On September 15, 2022, U.S. Department of Labor’ Occupational Safety and Health Administration announced expanded criteria for placement in its Severe Violator Enforcement Program (“SVEP”). The new criteria widens the scope of applicable violations to all hazards and OSHA standards, while maintaining the Program’s focus on repeat offenders.

Federal OSHA maintains a list of “severe violators,” updated quarterly, on its website. OSHA will include an employer in SVEP pursuant to a formulaic analysis of the type, number, and classification of citations received, even if they are under appeal. Now OSHA is widening the program.

According to Assistant Secretary for OSHA, Doug Parker:

[The revised SVEP] empowers OSHA to sharpen its focus on employers who – even after receiving citations for exposing workers to hazardous conditions and serious dangers – fail to mitigate these hazards . . . .  [T]oday’s expanded criteria reflect the Biden-Harris administration’s commitment to ensuring OSHA has the tools it needs to ensure employers protect their workers or hold them accountable when they fail to provide safe and healthy workplaces.

OSHA’s updated Instruction revises several SVEP program procedures and criteria, introduces new procedures and criteria, and provides other information about the Program.  Procedural updates include:

  • Handling SVEP cases;
  • Conducting a follow-up or referral inspection;
  • Addressing employers that have three or fewer similar related workplaces;
  • Addressing employers that have four or more similar related workplaces;
  • Handling construction and/or mobile worksites; and
  • Addressing nationwide inspections of related workplaces/worksites.

Program criteria updates include:

  • The Non-Fatality/Catastrophe Criterion no longer requires exposure to specific high emphasis hazards or to hazards related to the potential release of a highly hazardous chemical (Process Safety Management);
  • SVEP removal eligibility now begins three years after the date an employer completes abatement instead of from the final order date; and
  • Addition of a minimum 2-year duration in SVEP that includes specified criteria for removal based on a safety and health management system.

OSHA also offers “helpful additions,” like sample cover letters; a SVEP employer removal memorandum template; auxiliary SVEP log removal criteria and procedures (for closed workplaces five years from the final order date), and new procedures and guidance for recording and tracking inspections in the OSHA – Information System (OIS).

A nationwide referral under the SVEP can lead to substantial costs and OSHA inspections at company facilities across the country, so it is important to remain vigilant in carefully reviewing and responding to OSHA citations. OSHA’s revised SVEP makes it clear that aggressive enforcement and substantial penalties remain a primary objective for the Agency.

Please see our prior SVEP blogs with additional thoughts: OSHA Updates Emphasis Program on Amputations – Cites Employer and Places It on Severe Violators List, OSHA Publishes Severe Violator “White Paper”, Procedures for Removal from the OSHA Severe Violator Enforcement Program List, and OSHA Severe Violator Enforcement Program Employers List Nearly Doubles.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By A. Scott HeckerAdam R. Young, James L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: OSHA is highlighting trenching hazards, and their potentially-dire consequences, on its homepage

OSHA had released CPL 02-00-161 on October 1, 2018, continuing its National Emphasis Program on Trenching and Excavation, (“NEP”), and requiring agency compliance safety and health officers (“CSHO”) to “initiate inspections under this NEP whenever they observe an open trench or an open excavation, regardless of whether or not a violation is readily observed.” The NEP established procedures for prompt Area Office involvement and provided for a national online system to track trenching and excavation inspections.

OSHA’s alert on trench collapses explains that these “collapses, or cave-ins, are more likely than other excavation-related incidents to result in worker fatalities” because “[i]t only takes seconds to become buried in thousands of pounds of soil.

To control trenching hazards, the agency recommends that “employers act responsibly, train employees, and follow federal standards.” Further, OSHA encourages employers to “keep excavation work safe” by ensuring:

  • There is a safe way to enter and exit the trench;
  • Trenches have cave-in protection – remember to Slope, Shore, Shield;
  • Materials are kept away from the edge of the trench;
  • The area is scanned for standing water or other environmental hazards; and
  • No one enters a trench unless it is properly inspected.

Construction contractors conducting trenching and excavation operations, particularly those with operations on major thoroughfares, at high-profile locations, or in areas CSHOs are likely to travel, may face increased OSHA enforcement activities and regulatory scrutiny.  Employers should consult with safety professionals and outside counsel to ensure compliance with relevant OSHA Standards.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By A. Scott HeckerAdam R. YoungJames L. Curtis, Benjamin D. Briggs, and Craig B. Simonsen

Seyfarth Synopsis: OSHA is highlighting those employed through staffing agencies, generally called temporary or supplied workers, on its homepage. “Temporary workers” are workers supplied to a host employer and paid by a staffing agency, whether or not the job is actually temporary.

OSHA asserts the staffing agency and the staffing agency’s client (the host employer) are “joint employers” of temporary workers and, therefore, “both are responsible for providing and maintaining a safe work environment for those workers.” OSHA notes that it could hold both the host and temporary employers “responsible for the violative condition(s) – and that can include lack of adequate training regarding workplace hazards.”

Employer Takeaway

We have blogged previously about OSHA’s enforcement activities and guidance documents relating to temporary workers: OSHA Releases Two New Temporary Worker Guidance DocumentsOSHA Releases Two More Temporary Worker Guidance DocumentsNew Guidance for ‘Recommended Practices’ to Protect Temporary WorkersOSHA Issues Memo to ‘Remind’ its Field Staff about Enforcement Policy on Temporary Workers, and OSHRC Reviews Employment Relationships.

It is OSHA’s view that staffing agencies and host employers are “jointly responsible” for temporary workers’ safety and health. As these blogs make clear, fulfilling the shared responsibility for temporary worker safety requires thoughtful coordination between staffing agencies and host employers. OSHA has previously acknowledged that a host employer may have more knowledge of the specific hazards associated with the host worksite, while the staffing agency has a more generalized safety responsibility to the employees. As a result, OSHA allows host employers and staffing agencies to divide training responsibilities based upon their respective knowledge of the hazards associated with the specific worksite. While host employers will typically have primary responsibility for training and communication regarding site-specific hazards, staffing agencies must make reasonable inquiries to verify that the host employer is meeting these requirements.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By  A. Scott HeckerAdam R. Young, James L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: The CDC has found that COVID-19 caseshospitalizations, and deaths are leveling off from their rise over the summer. The CDC advises that Americans can help prevent these numbers from increasing again by staying up to date with COVID-19 vaccinations.

The CDC found that 77% of adults over age 18 years have received a COVID-19 vaccine primary series at this point. On the other hand, only half of booster-eligible adults have gotten a booster, and only 34% of adults 50 and older have gotten a second booster.

CDC notes that in June, 2022, people ages 50 years and older with two booster doses were 14 times less likely to die from COVID-19 than unvaccinated people of the same age and three times less likely to die than vaccinated people of the same age with only one booster. The CDC explains:

These findings highlight that older adults and those with underlying medical conditions, including those who have been vaccinated with only a primary series, might still be at higher risk of getting very sick from COVID-19. Everyone who is eligible should stay up to date with their COVID-19 vaccines, including getting their boosters. People at higher risk of severe illness should take additional measures, regardless of vaccination status, including talking to a provider about treatment options if they get COVID-19.

While the CDC recently relaxed its COVID-19 quarantine guidance, it continues to recommend vaccination, and employers should educate their workforces about staying up-to-date to mitigate any workplace transmission risks. Further, a new generation of vaccines is expected to be distributed after Labor Day, which will be engineered to better address anticipated strains of COVID-19.  Many employers are revisiting COVID-19 protocols and booster distribution, to protect their employee health going forward.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Adam R. YoungMelissa A. Ortega, A. Scott HeckerJames L. CurtisBrent I. ClarkBenjamin D. Briggs, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: On August 11, 2022, the CDC, through a press release, eased its COVID-19 guidance to “help us move to a point where COVID-19 no longer severely disrupts our daily lives,” while acknowledging that the pandemic is not over.

Citing the fact that many Americans now have some level of immunity to COVID-19 and the arsenal of tools to combat COVID-19, including vaccinations, the Center for Disease Control (“CDC”) eased its COVID-19 guidance. Specifically, the CDC eased isolation recommendations for individuals who are not up to date with their vaccines, individuals who are exposed to COVID-19, and individuals who have or suspect they may have COVID-19.

Updated Guidance for Individuals who are Not Up to Date with Vaccines

The CDC now recommends the same quarantine and isolation guidelines for those who are not up to date with vaccines as those who are up to date with vaccines.

Previously, the CDC recommended that individuals who were not up to date on their vaccines and were in close contact with someone with COVID-19 isolate for at least 5 days. Now, all individuals regardless of vaccination status, do not need to isolate if they are in close contact with someone with COVID-19.

Updated Guidance for Individuals who are Exposed to COVID-19

Previously, the CDC recommended quarantine for people who were exposed to COVID-19. Now, the CDC solely recommends that individuals exposed to COVID-19 wear a “high-quality” mask for 10 days and test on day 5, regardless of vaccination status.

Updated Guidance for Individuals who Have or Suspect they May Have COVID-19

For those who test positive, the CDC is now recommending isolation for at least 5 days (down from 10 days). If a person must be around others in their home or in public, the CDC recommends the use of a high-quality mask. If, after 5 days, an individual is fever-free for at least 24-hours without the use of fever-reducing medication, and other symptoms (if any) are improving, those individuals may end isolation, but should continue to wear a high-quality mask through day 10 and avoid being around other who may be at risk of serious illness until at least day 11.

Individuals who test positive and are experiencing moderate illness, i.e. difficulty breathing, or severe illness, i.e. hospitalization, should isolate at least through day 10. For those who experience severe illness or have weakened immune systems, the CDC recommends they consult with their healthcare provider before ending the isolation period.

For individuals who end isolation after testing positive but symptoms worsen, the CDC recommends they restart the isolation period.

For individuals who are sick and suspect they may have COVID-19 but do not have positive test results, the CDC also recommends isolation until they obtain a negative test result.

The CDC continues to promote the importance of staying up to date with COVID-19 vaccines to protect individuals from serious illness, hospitalization, and death and emphasizes that social distancing is also one of many components recommended to protect oneself and others. The CDC also updated its Quarantine and Isolation guidance for individuals with COVID-19 and will update the Quarantine and Isolation Calculator, which will be available here when updated.

Many employers are reevaluating their policies in light of the recent CDC changes.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Adam R. YoungMark A. Lies, IIBrent I. Clark, and Craig B. Simonsen

Seyfarth Synopsis: Safety and health management systems (SHMSs) may demonstrate a commitment to improving safety and health outcomes, and reduce legal liabilities.

The federal OSHA standards mandate a series of written safety and health programs, depending on the hazards at the worksite, such as a lockout-tagout program (machine re-energization hazards), hazard communication program (chemical hazards), and respiratory protection program (for airborne health hazards).

While OSHA often requests a Company’s “safety program” during its onsite inspections, this is a misnomer as there is no federal requirement for an overarching “safety program” to govern all hazards and safety and health programs.  No federal OSHA regulation currently requires an SHMS.  There has been talk for many years of federal OSHA developing a federal SHMS or “Injury and Illness Prevention Plan” standard, but no regulations have materialized.

  1. Elements of an SHMS

OSHA guidance recommends that each employer develop a Safety and Health Management System overseeing all safety and health programs.

Major elements include:

  1. Management Leadership. OSHA wants employers to outline management oversight over the program, resources for the program, setting safety and health goals, and verification.
  2. Worker Participation. OSHA advises employers to include employees in far more areas of safety and health programs than typical in industry.  This includes policies requiring reporting of safety concerns, prompt investigation and response to this concerns, providing access to programs and documents, conducting workplace inspections, investigating incidents, and reviewing/improving training programs.
  3. Hazard Identification and Assessment. This means a wide-ranging review of potential safety information such as past incidents, OSHA standards, equipment safety information, and input from team members.  Employers then inspect the workplace, including after incidents, and identify hazards and prioritize for abatement.
  4. Employee Education and Training. Training addresses programs, controls, and hazard identification.  Key to any program, supervisors must be trained on responsibilities under the OSH Act with regard to supervision and enforcement of safety rules.
  5. Hazard Prevention and Control. For hazards management will identify or anticipate, management will gather and evaluate information about appropriate controls, select appropriate controls, and ensure that they reduce safety and health risks to the lowest acceptable level.
  6. Program Evaluation and Improvement. The employer must monitor program performance and track progress, including metrics on the number of inspections that have taken place, number of hazards reported, number of OSHA-recordable injuries and illnesses, and injury and illness rates compared to the industry.
  7. Communication and Coordination for Host Employers, Contractors, and Staffing Agencies. In temporary worker, staffing agency, and multiemployer situations, OSHA believes that safety is enhanced if employers establish mechanisms to coordinate their efforts and communicate effectively to afford all workers protection against hazards.  These efforts include worksite-specific training on reasonably anticipated hazard.

2. Benefits of an SHMS

OSHA values SHMSs and likely will interpret the good faith implementation of an SHMS by an employer as an effort to address employee safety and health in a positive manner. Federal OSHA maintains its own SHMS for OSHA employees, an indication of its importance to the agency. If the employer has an SHMS, OSHA may be less likely to open an onsite inspection, less likely to expand its inspection, more likely to limit an onsite inspection, and less likely to issue citations.  Judges addressing Willful OSHA citations have vacated these citations where the employer was not “doing nothing” to address the hazard.  An SHMS would provide evidence that the employer recognized a hazard and attempted to address it in good faith, and that any violation of the OSH Act was not Willful.  Finally, OSHA often demands the institution of such a program as an “enhancement” to settle citations, meaning that an SHMS may be a useful tool in settlement of pending citations.

A frequent argument in support of an SHMS program is that it represents a more “holistic” approach to safety and health at the workplace.  Rather than focusing on compliance with existing OSHA regulations, frequently described as “vertical” standards because they address a specific hazard (e.g. lockout-tagout, machine guarding, noise, etc.) — and thereby either overlooking or ignoring hazards for which there is no regulation — an SHMS is broad and “horizontal” in approach, that is, identifying all hazards that may exist in the workplace, not just those for which there may be a regulation and developing proactive measures.  OSHA cites statistical studies in support the effectiveness of SHMS programs in reviewing injury and illnesses in the workplace.

  1. Similarities to a California IIPP

For decades, California OSHA has required that each employer maintain an IIPP, an overarching program with significant overlap with a SHMS.  The primary difference we see in federal OSHA’s SHMS guidance are elements (B), (F), and (G) above — greater levels of employee access, not just access to the program document, but active employee involvement in several aspects of implementation.  Also, the SHMS recommendations speak to broader industry evaluation and tracking, and to specific communication with contractors, a major source of workplace injuries and OSHA citations.  Employers who use a California-compliant IIPP on a national basis may benefit by supplementing with some additional elements OSHA recommends for an SHMS.

  1. Action Plan to Develop and SHMS

Safety professionals tell us that employers can reduce their rates of occupational injuries and illnesses by examining the hazards in their workplaces and developing strategies to reduce them.  An SHMS is recommended as an effective way to formalize those efforts and address safety.  Seyfarth Shaw LLP helps employers develop SHMSs, and revise a range of safety policies to meet or exceed OSHA regulations and industry best practices.

Readers may also wish to check out these substantive details from OSHA on SMHSs, along with a Bureau of Labor Statistics source which provides detail on how to conduct a credible “root cause” analysis.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Adam R. YoungA. Scott Hecker, Patrick D. Joyce, Mark A. Lies, II, James L. CurtisBrent I. Clark, Benjamin D. Briggs, and Craig B. Simonsen

Seyfarth Synopsis: The WHO and the CDC have updated statements and FAQs on the monkeypox disease, declaring the disease a “Public Health Emergency of International Concern.”

Taken from https://www.cdc.gov/poxvirus/monkeypox/response/2022/world-map.html

On August 4, 2022, the Biden Administration, through the U.S. Department of Health and Human Services, joined the WHO in declaring a public health emergency. Apart from the CDC’s guidance for congregate and healthcare settings, neither the CDC nor OSHA has released any guidance related to monkeypox in the workplace or otherwise identified monkeypox as a workplace hazard.

As always, Seyfarth’s Workplace Safety and Health team will advise employers on any direct impacts as this situation develops.

On July 23, 2022, the WHO declared monkeypox a “Public Health Emergency of International Concern” and issued a set of Temporary Recommendations to address a multi-country outbreak of monkeypox. These recommendations apply differently to countries with no known transmission versus those with known human-to-human transmission. For countries with known human-to-human transmission, the WHO recommends implementing response actions with the goal of stopping human-to-human transmission, implementing strategies to protect vulnerable groups, and engaging with affected communities to raise awareness about monkeypox transmission. The WHO also recommends various public health measures such as increasing laboratory testing capacity and assisting local public health authorities with creating messaging for those who contract or are exposed to monkeypox.

No Specific Employer Action Plan Required at This Time

Unlike COVID, which is transmitted in the air, monkeypox’s primary route of transmission is through skin to skin contact with someone who has the disease. Accordingly, with the exception of the healthcare industry, monkeypox is currently viewed as a public health hazard and not a workplace health hazard. As such, there are no specific federal, state, or local rules that address monkeypox precautions in the workplace. As with COVID-19, we recommend tracking CDC guidance related to monkeypox and taking the necessary steps to abate any potential hazard in the workplace that may arise. However, as of the publication of this blog, neither the CDC nor OSHA have issued workplace guidance related to monkeypox other than in the healthcare industry. It is possible CDC or OSHA may issue workplace guidance related to monkeypox in the future, however, at this time employers do not need to restart COVID-19 protocols to address monkeypox.

It should also be noted that employees who contract or who are treated for monkeypox may have certain protections under Federal and state law against discrimination. For example, monkeypox can be considered a “serious” health condition under the Family and Medical Leave Act (FMLA) that would entitle an employee to a qualifying leave for treatment and reinstatement to their former job after they have been treated. Likewise, the employee may have some protections under the Americans with Disabilities Act (ADA) if the disease were to be considered or result in a “disability” entitling the employee to a leave for treatment or an “accommodation” upon returning to work if the disease were to result in a disability after treatment.

Signs and symptoms

The WHO indicates that the incubation period of monkeypox is usually from 6 to 13 days but can range from 5 to 21 days. This means that individuals could develop symptoms 5-21 days after exposure to the illness.

Centers for Disease Control on Monkeypox

The CDC is saying that an outbreak of monkeypox is currently spreading across several countries that are not typical sources of monkeypox infections, including the United States. “Over 99% of people who get this form of the disease are likely to survive. However, people with weakened immune systems, children under 8 years of age, people with a history of eczema, and people who are pregnant or breastfeeding may be more likely to get seriously ill or die.”

The infection can be divided into two periods:

  • The invasion period (lasts between 0–5 days) characterized by fever, intense headache, lymphadenopathy (swelling of the lymph nodes), back pain, myalgia (muscle aches) and intense asthenia (lack of energy). Lymphadenopathy is a distinctive feature of monkeypox compared to other diseases that may initially appear similar (chickenpox, measles, smallpox)
  • The skin eruption usually begins within 1–3 days of appearance of fever. The rash tends to be more concentrated on the face and extremities rather than on the trunk.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Adam R. YoungA. Scott Hecker, Patrick D. Joyce, Mark A. Lies, II, James L. CurtisBrent I. Clark, and Craig B. Simonsen

Seyfarth Synopsis: The WHO and the CDC issued statements and FAQs on the monkeypox disease, declaring the disease a “Public Health Emergency of International Concern.”

On July 23, 2022, the WHO declared monkeypox a “Public Health Emergency of International Concern” and issued a set of Temporary Recommendations to address a multi-country outbreak of monkeypox. These recommendations apply differently to countries with no known transmission versus those with known human-to-human transmission. For countries with known human-to-human transmission, the WHO recommends implementing response actions with the goal of stopping human-to-human transmission, implementing strategies to protect vulnerable groups, and engaging with affected communities to raise awareness about monkeypox transmission. The WHO also recommends various public health measures such as increasing laboratory testing capacity and assisting local public health authorities with creating messaging for those who contract or are exposed to monkeypox.

No Specific Employer Action Plan Required at This Time

Unlike COVID, which is transmitted in the air, monkeypox’s primary route of transmission is through skin to skin contact with someone who has the disease. Accordingly, with the exception of the healthcare industry, monkeypox is currently viewed as a public health hazard and not a workplace health hazard. As such, there are no specific federal, state, or local rules that address monkeypox precautions in the workplace. As with COVID-19, we recommend tracking CDC guidance related to monkeypox and taking the necessary steps to abate any potential hazard in the workplace that may arise. However, as of the publication of this blog, neither the CDC nor OSHA have issued workplace guidance related to monkeypox other than in the healthcare industry. It is possible CDC or OSHA may issue workplace guidance related to monkeypox in the future, however, at this time employers do not need to restart COVID-19 protocols to address monkeypox.

It should also be noted that employees who contract or who are treated for monkeypox may have certain protections under Federal and state law against discrimination. For example, monkeypox can be considered a “serious” health condition under the Family and Medical Leave Act (FMLA) that would entitle an employee to a qualifying leave for treatment and reinstatement to their former job after they have been treated. Likewise, the employee may have some protections under the Americans with Disabilities Act (ADA) if the disease were to be considered or result in a “disability” entitling the employee to a leave for treatment or an “accommodation” upon returning to work if the disease were to result in a disability after treatment.

Signs and symptoms

The WHO indicates that the incubation period of monkeypox is usually from 6 to 13 days but can range from 5 to 21 days. This means that individuals could develop symptoms 5-21 days after exposure to the illness.

Centers for Disease Control on Monkeypox

The CDC is saying that an outbreak of monkeypox is currently spreading across several countries that are not typical sources of monkeypox infections, including the United States. “Over 99% of people who get this form of the disease are likely to survive. However, people with weakened immune systems, children under 8 years of age, people with a history of eczema, and people who are pregnant or breastfeeding may be more likely to get seriously ill or die.”

The infection can be divided into two periods:

  • The invasion period (lasts between 0–5 days) characterized by fever, intense headache, lymphadenopathy (swelling of the lymph nodes), back pain, myalgia (muscle aches) and intense asthenia (lack of energy). Lymphadenopathy is a distinctive feature of monkeypox compared to other diseases that may initially appear similar (chickenpox, measles, smallpox)
  • The skin eruption usually begins within 1–3 days of appearance of fever. The rash tends to be more concentrated on the face and extremities rather than on the trunk.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.