Federal Declaration of Monkeypox as Public Health Emergency
By Michael Santo, Managing Attorney at Bechtel & Santo
On August 4, 2022, the Biden administration made an announcement during a briefing with the Department of Health and Human Services designating the developing Monkeypox outbreak as a federal Public Health Emergency. As of this week, more than 6,600 Americans have been infected with Monkeypox, and the number is rising quickly.
What is a Public Health Emergency? 
The designation of Public Health Emergency allows the DHHS Secretary to take actions to counteract the virus’ spread. A declaration of a public health emergency by the DHHS permits the Secretary of the DHHS to take certain actions. For example: (1) make grants; enter into contracts; and conduct and supporting investigations into the cause, treatment, or prevention of the disease or disorder; (2) access “no-year” funds appropriated to the Public Health Emergency Fund to rapidly respond to immediate needs resulting from the PHE, or to rapidly respond to a potential PHE when the Secretary determines that there is a significant potential for a PHE; (3) enable the Centers for Disease Prevention and Control Director to access the Infectious Diseases Rapid Response Reserve Fund to prevent, prepare for, or respond to an infectious disease emergency; and (4) grant extensions or waive sanctions relating to submission of data or reports required under laws administered by the Secretary, when the Secretary determines that, wholly or partially as a result of a public health emergency, individuals or public or private entities are unable to comply with deadlines for such data or reports.
Does this declaration mean that Colorado employers need to provide their employees 80 hours of leave under Colorado’s Healthy Families and Workplaces Act?
In short, not at this point. That is, under HFWA, the definition of a “Public Health Emergency” includes:
(a) an act of bioterrorism, a pandemic influenza, or an epidemic caused by a novel and highly fatal infections agent for which:
(1) an emergency is declared by a federal, state, or local public health agency; or
(2) a disaster emergency is declared by the Governor;” or
(b) a highly infectious illness or agent with epidemic or pandemic potential for which a disaster emergency is declared by the Governor.
So, are we in a Public Health Emergency?
Monkeypox does not currently qualify as a Public Health Emergency under Colorado law because: (1) it has not been determined to be a “highly fatal infectious” agent given that Monkeypox is rarely fatal; and (2) the Governor has not yet designated the Monkeypox outbreak a disaster emergency in Colorado pursuant to the Colorado Disaster Emergency Act, C.R.S. § 24-33.5-701, et seq. The Act requires that, “A disaster emergency shall be declared by executive order or proclamation of the governor,” and as of today, no such executive order or other declaration has yet been released.
This definition is crucial because once a Public Health Emergency is triggered, Public Health Emergency paid leave (“PHEL”) becomes immediately available to employees in Colorado for the duration of the emergency plus four weeks. Given the current status of Monkeypox under HFWA, it is safe to assume, for the time being, that it has not triggered PHE Leave benefits until one of the above-identified events take place.
Is PHE leave still available for COVID?
Yes, in July, the DHHS extended the COVID federal state of emergency through October 13, 2022. This means PHEL will be available for COVID symptoms until at least November 13, 2022. Employees only receive one “dump” of PHE Leave per emergency, meaning that whatever employees have already used for COVID purposes can be deducted from the amount of PHEL that they have available for COVID.
What are the symptoms of Monkeypox?
Symptoms of Monkeypox include: fever, headache, muscle aches and backaches, swollen lymph nodes, chills, exhaustion, respiratory symptoms, and a rash containing painful blisters. Most patients with Monkeypox will get a rash at some point during their infection. Monkeypox is spread mostly through skin-to-skin contact, or skin contact with an infected object, although some respiratory fluids can spread Monkeypox.
The best way to prevent the spread of Monkeypox is to avoid skin-to-skin contact with an infected person, regular hand washing, and sanitizing/wiping down surfaces that are touched often or touched by the public.
Action Items:
For now, employers do not need to provide any additional leave to employees for Monkeypox. However, stay up on the Employer’s Advisory and other sources of news and we will let you know if, and when, any obligations attach for Colorado employers.
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