Fish: Workers' Compensation and the Monkeypox Virus

Thursday, August 11, 2022 | 0

Fresh on the heels of COVID-19, reports of monkeypox outbreaks in the United States are starting to get the attention of employers. Monkeypox is a rare disease caused by infection with the monkeypox virus. Monkeypox symptoms are like smallpox symptoms, but milder and rarely fatal.

Mike Fish

Monkeypox will not rise to the level of a pandemic because it does not transmit as quickly as the coronavirus and stopping it will not require dramatic interventions like the COVID-19 lockdowns.

The White House recently declared the virus a public health emergency with more than 7,000 confirmed cases in the U.S. A county in California declared monkeypox a public health emergency earlier this week with 59 probable/confirmed cases.

A news release from the Alabama Department of Public Health said that as of Monday, there were 19 cases of monkeypox in Alabama.

As with COVID-19, it is conceivable that workers’ compensation claims will be made for monkeypox. For the same reasons that COVID-19 WC claims were denied in Alabama, claims for monkeypox will also likely be denied.

In Alabama, an occupational disease is defined as “a disease arising out of and in the course of employment … which is due to hazards in excess of those ordinarily incident to employment in general and is peculiar to the occupation in which the employee is engaged but without regard to negligence or fault, if any, of the employer.”

Therefore, for the monkeypox virus to be considered compensable in Alabama, the employee would have to be able to prove that contracting it was due to hazards in excess of those ordinarily incident to employment in general and that it is peculiar to the employee’s occupation.

It will be difficult for an employee to show that contracting the virus resulted from a risk of employment. The reason is that, like the flu, you face the same sort of risk when you go home or when you walk about in public. Some state laws have presumptions for health care workers or first responders. Alabama is not one of those states. Without a statutory presumption in place, it would be nearly impossible to prove causation.

Mike Fish is an attorney with Fish Nelson & Holden LLC, headquartered in Birmingham, Alabama. This entry is republished, with permission, from the firm's Alabama Workers' Comp Blawg.