Key Takeaways:

• On July 29, 2022, New York State declared the Monkeypox virus a public health emergency

• On August 4, 2022, the White House declared Monkeypox a public health emergency

• Employers may soon face the perfect storm of leave complexities

The emergence of Monkeypox has created yet another layer of challenges for employers in a work environment that is already saturated with complex decisions in light of the COVID-19 pandemic. Many employees are likely not familiar with Monkeypox, how it is spread, what its symptoms are, or how similar or different it is from COVID-19. Similarly, employers are struggling to understand patchwork state and federal legislation to address these diseases. Employers need to be prepared for yet another challenging fall and winter if the number of cases for both COVID-19 and Monkeypox continues to rise.

Governmental Response to Monkeypox

In addition to the White House, many states and localities have started to declare emergencies in response to Monkeypox, including New York State. This is the same measure that states and localities took at the beginning of the COVID-19 pandemic in order to increase flexibility in responding to the unique issues presented by the disease.

New York employers may be curious if the continued spread of Monkeypox will result in Monkeypox being designated as a serious risk of harm to the public health under the NY HERO Act, requiring employers to implement the workforce safety plans that were created last year. A NY HERO Act designation is unlikely for Monkeypox since the NY HERO Act solely covers “airborne infectious diseases” while Monkeypox is largely spread through skin-to-skin contact or by directly touching surfaces (see CDC transmission information here). However, it would not be entirely surprising if New York enacted another law requiring employers to develop plans for other diseases in response to the outbreak of Monkeypox.

What Leaves Are Employees Entitled To?

At the federal law level, the Families First Coronavirus Response Act enacted at the beginning of the COVID-19 pandemic in March 2020—which included the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act—has long expired. Employees with Monkeypox or COVID-19 may be eligible for traditional unpaid Family and Medical Leave Act leave if they work for a covered employer, meet the employee eligibility requirements, and meet the definition of a “serious health condition.” Similarly, employees that have lingering effects from COVID-19 may have “long COVID-19” which could qualify as a disability under the Americans with Disabilities Act and require their employer to engage in the interactive process. Beyond that, there is no federal law currently in place that provides for paid leave to employees for COVID-19 or Monkeypox.

Numerous state and local governments enacted COVID-19 related leaves during the pandemic. Some of these laws had built-in expiration dates that have since passed, some laws had their expiration dates extended, and some had no expiration date at all. For example, New York enacted a COVID-19 Paid Leave Law on March 18, 2020, which is triggered when an employee is subject to a mandatory or precautionary order of quarantine or isolation. This law is still in effect and has no expiration date. Last year New York also enacted a law to provide paid leave for an employee who goes to get the COVID-19 vaccine. That law was set to expire on December 31, 2022 but has since been extended to December 31, 2023. Notably, these COVID-19 specific laws were not drafted in consideration of other future widespread diseases.

While there is no specific leave law for Monkeypox (yet), an employee may be entitled to take New York Paid Sick Leave if they contract Monkeypox or New York Paid Family Leave if a family member contracts Monkeypox.

Other Leave Considerations

The combination of COVID-19, Monkeypox, and the increase in remote work has created the perfect storm of leave complexities for employers. Under most circumstances, employers are required to comply with the leave requirements of the state and/or locality where their employees work, even if the employer’s main place of business is out of state. This is because the state and local leave laws often define a “covered employer” in a very expansive way. For example, some leave statutes determine the employee count by the number of employees in the entire company, while others only consider employees within the state but the number is very low (e.g. one employee). As a result, an out-of-state employer could be required to comply with a leave law of a different state for a single remote worker. Since each leave law is structured differently, there is not a simple approach for compliance for employers with a geographically dispersed workforce.

Employers that continue to embrace and expand their remote workforce across the country will also need to take into account the added complexity of understanding and correctly applying the numerous leave laws that differ by geography. Additionally, employers will need to address potential morale issues if certain employees happen to live in a geographic area that provides different leave time for an employee than another who lives and works in a different part of the country.