COVID-19 silently infects and can be lethal. Monkeypox infects but leaves a distinct mark, a pock.  While both create challenges for employers, the visible emergence of monkeypox requires revisiting lessons from the earliest stages of the COVID-19 pandemic to prevent claims of employment discrimination.

Monkeypox virus presents an emerging problem for employers. Cases are increasing in Texas and nationwide. Several counties and cities in Texas have or are considering declaring monkeypox a public health emergency. The monkeypox virus is a relative of smallpox and causes systemic symptoms, including fever, swollen lymph nodes, muscle aches, and a characteristic rash that progresses from blisters to pustules. The means by which the pox is transmitted have not been clearly of definitively defined.  And while the smallpox vaccine has shown some effectiveness in decreasing symptoms of  monkeypox, that vaccine is in short supply.

An indirect result of monkeypox as well as the ongoing COVID-19 pandemic is that employers may find themselves exposed to more claims for harassment, retaliation, discrimination and/or the existence of a hostile work environment. One way to reduce that exposure is for employers to include in their employee practices  explicit communications to the workforce that fear of monkeypox or any other disease should not be directed against individuals because of a protected characteristic, including their national origin, race, disability, or other prohibited bases.

Employers are often times a trusted and sometimes only source of health information for their employees. An employer can demonstrate its concern for employee well-being by delivering accurate communication about monkeypox, including its symptoms, transmission methods and how to prevent such transmission. Employers should communicate promptly if there is a workplace exposure, while maintaining full confidentiality of any employee who is infected. Employees should address individual medical questions to their physicians or a virtual care clinician. Keeping your communications fact-based, concise, practical and non-judgmental will help make employees feel comfortable in reporting an infectious disease and acting in the best interest of all of the employees in that workspace.

Some tips, developed by the EEOC, for businesses to stay in compliance with anti-harassment, discrimination, disability and other federal protection statutes include the following.

• • State that harassment based on race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, disability, age (40 or older) or genetic information (including family medical history) is illegal and will not be tolerated. Providing your employees with definitions and examples of such prohibited conduct would be good training and reminders for their every day’s work environment and treatment of each other.
  • Explain how employees can report harassment or discrimination.
    • • If possible, designate at least one person outside an employee’s chain of command who can receive harassment complaints.
      • Consider permitting employees to report harassment or discrimination to any manager.
  • State that you will protect the confidentiality of employees who report harassment or participate in a harassment investigation, to the greatest possible extent.
  • State that employees will not be punished for reporting harassment or participating in a harassment investigation or lawsuit.
    
  • Require managers and other employees with human resources responsibilities to respond appropriately to harassment or to report it to individuals who are authorized to respond.
  • Provide for prompt, thorough and impartial investigation of harassment complaints.
  • Provide for prompt and effective corrective and preventative action when necessary.
  • Consider requiring that employees who file internal complaints be notified about the status of their complaint, the results of the investigation and any corrective and preventative action taken.
  • Describe the consequences of violating the harassment policy.

As an employer, you should also consult with federal as well as state and local laws that may  prohibit additional types of harassment.  State and local government websites may have additional information about laws in their jurisdictions.

The attorneys in our Austin and Dallas offices are available to answer any questions you may have about how to reduce your exposure employment discrimination claims.  You may contact us at info@gstexlaw.com.

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