As Monkeypox (MPX) continues to be an issue throughout California, Cal/OSHA issued guidance to assist in protecting employees. However, this guidance applies only to workplaces covered by the Aerosol Transmissible Diseases (ATD) standard, which is notable because the guidance itself states that “MPX spreads primarily by close or direct contact with infectious rashes, lesions, scabs, or body fluids.” However, the guidance also states that “the virus can become airborne during changing or handling of contaminated linen.

Workplaces covered by the Cal/OSHA ATD Standard include the following:

  • Hospitals
  • Skilled nursing facilities
  • Clinics, medical offices, and other outpatient medical facilities
  • Home health care
  • Long-term health care facilities and hospices
  • Medical outreach services
  • Paramedic and emergency medical services
  • Medical transport
  • Homeless shelters (includes 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 other employers covered by the ATD standard. Since this guidance is very specific, we recommend reviewing the requirements directly from the Cal/OSHA guidance linked above.

The guidance also provides that all employers covered by the ATD standard must provide and ensure uses of respiratory protection defined as fit-tested, 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 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-generating procedures on patients suspected or confirmed to have an airborne infectious disease such as MPX (powered air-purifying respirator or better);
  • 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 (aka a “significant exposure”), which is more specifically defined in the guidance. For such incidents, 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 done through the local health department.
  • Report the exposure to the local health officer.
  • Remove the employee from the workplace if the PHLCP or local health officer recommends precautionary removal. Maintain the employee’s pay, rights, benefits, etc. during precautionary removal.

If you need assistance in ensuring compliance with MPX guidance in your workplace or have related questions, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

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Photo of Sean Paisan Sean Paisan

Sean Paisan is of counsel in the Orange County, California, office of Jackson Lewis P.C. He is the leader of the firm’s Cal/OSHA practice subgroup and co-leader of the firm’s Construction industry group. His practice focuses on assisting employers with Cal/OSHA compliance, investigations…

Sean Paisan is of counsel in the Orange County, California, office of Jackson Lewis P.C. He is the leader of the firm’s Cal/OSHA practice subgroup and co-leader of the firm’s Construction industry group. His practice focuses on assisting employers with Cal/OSHA compliance, investigations, and fighting citations. Additionally, Sean also assists employers in data privacy and traditional employment matters, including litigation and counseling.

Sean’s first exposure to OSHA regulations occurred during his undergraduate studies while working for a construction company that helped build Disney’s California Adventure. After attending law school and working for the Los Angeles County District Attorney’s Office and the United States Attorney’s Office, Sean moved into private practice, where he focused on general liability matters, including serious injuries and fatalities. Through this experience, Sean became very knowledgeable on the myriad of Cal/OSHA regulations imposed on businesses, especially in the construction, manufacturing, and healthcare industries, and the consequences for violations of those regulations. From there, Sean became OSHA 30 certified and began assisting employers with all workplace safety matters, from compliance, to investigations and inspections, to the appeals of citations in California, Arizona, Washington, and Hawaii.

Throughout his career, Sean has been called upon to try cases that cannot be settled. He has handled trials in the United States District Court, California Superior Court, Cal/OSHA Appeals Board, Workers Compensation Appeals Board, and the US Department of Labor OALJ, as well as binding arbitrations. Sean has tried cases involving the following subjects: general employment, wrongful death, premises liability, unfair competition (B&P § 17200), false advertising (Lanham Act), misappropriation of trade secret, restrictive covenants, and whistleblower (AIR21).

In addition to his trial experience, he is routinely called on to assist his clients with workplace crises such as catastrophic injuries, fatalities, data breaches, and ransomware incidents. Drawing on his years of in both civil and criminal law, Sean’s unique background allows him to anticipate and proactively manage issues, rather than simply reacting to requests and inquiries by investigating agencies such as law enforcement, OSHA, Cal/OSHA, California Bureau of Investigations (BOI), Federal Aviation Administration (FAA), National Transportation Safety Board (NTSB), as well as opposing counsel in litigation matters.

In addition to his litigation experience, Sean has earned the CIPP/US credential through the International Association of Privacy Professionals (IAPP). He helps organizations manage rapidly evolving privacy threats and mitigate the potential loss and misuse of information assets. He has an in-depth understanding of how privacy laws can impact business operations. These laws include the Health Insurance Portability and Accountability Act (HIPAA), Federal Trade Commission Act (FTC Act), Health Information Technology for Economic and Clinical Health Act (HITECH), Genetic Information Nondiscrimination Act (GINA), Fair Credit Reporting Act (FCRA), Gramm-Leach-Bliley Act (GLBA), Fair and Accurate Credit Transaction Act (FACTA), Dodd-Frank Wall Street Reform and Consumer Protection Act, California Financial Information Privacy Act, Family Educational Rights and Privacy Act (FERPA), Telemarketing Sales Rule, Telephone Consumer Protection Act (TCPA), Junk Fax Prevention Act, Controlling Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM), Cable Communications Policy Act, Video Privacy Protection Act, Children’s Online Privacy Protection Act (COPPA), California Online Privacy Protection Act (CalOPPA), California Consumer Privacy Act (CCPA), and California Privacy Rights Act (CPRA). With respect to laws affecting the ability of the government to obtain information, Sean can assist employers in understanding their obligations under the Federal Wiretap Act, Electronic Communications Privacy Act (ECPA), Communications Assistance for Law Enforcement Act (CALEA), Right to Financial Privacy Act, Privacy Protection Act, Foreign Intelligence Surveillance Act (FISA), and USA PATRIOT Act.

Before becoming an attorney, Sean earned his bachelor’s degree in accounting from the University of Southern California, where he also played varsity ice hockey in the ACHA. When not practicing law, Sean enjoys spending time with his wife and three young children, playing adult league ice hockey, mountain biking, and motorsports.