Washington Governor Jay Inslee’s April 13 proclamation temporarily expands accommodations for employees who are at "high risk" for severe coronavirus illness. Washington employers should immediately prepare to make significant HR modifications for such employees that may include alternative work assignments, leave and unemployment benefits, and continued health care benefits, among other things.
Who are “High Risk” Employees?
The proclamation adopts the Centers for Disease Control’s (CDC) definition for employees who are at “higher risk” for severe coronavirus illness as those who meet any one of the following factors:
- Over 65
- Live in a nursing home or long term care facility
- Have chronic lung disease or moderate to severe asthma
- Have serious heart conditions
- Are immunocompromised
- Have severe obesity (body mass index [BMI] of 40 or higher)
- Have diabetes
- Have chronic kidney disease undergoing dialysis
- Have liver disease
It is important to remember that employers cannot identify high-risk employees or even ask employees to self-identify. Requesting that information would be eliciting disability-related information. Rather, employees will need to identify themselves when seeking an accommodation.
What Should Washington Employers Do to Comply With the Proclamation?
The Governor’s proclamation grants new legal protections to high-risk employees working in Washington state. Employers must be prepared to engage in the reasonable accommodation process, grant leave and continue health insurance benefits under the following circumstances:
- When requested by high-risk employees, Washington employers must utilize all available options for alternative work assignments to protect such high-risk employees from exposure to the COVID-19 disease. This expressly includes: telework, alternative or remote work locations, reassignment and social distancing measures.
- If an alternative work arrangement is not feasible, employers must permit any high-risk employee to use any available employer-granted accrued leave or unemployment insurance in any order the employee chooses to use.
- Even when an employee exhausts their paid time off during a period of leave, the employer must fully maintain employer-related health insurance benefits until the employee is “deemed eligible” to return to work.
- Employers are prohibited from retaliating against employees who exercise their rights under the proclamation.
- Employers are prohibited from permanently replacing a high-risk employee who takes COVID-related leave.
- Employers and unions are prohibited from enforcing any contractual provision (including provisions in a collective bargaining agreement) that contradicts the proclamation’s rules.
- Violations may result in steep consequences — a willful violation of the proclamation is a gross misdemeanor.
On July 29, Governor Jay Inslee issued Proclamation 20-46.2, which amended the original proclamation and 20-46.1 in key ways. First, the amendment extends the expiration of this proclamation until the end of the state of emergency which the Governor declared under Proclamation 20-05, or until otherwise rescinded or amended.
Second, “high-risk employees” is more clearly defined to track guidance issued by the Centers for Disease Control and Prevention (CDC). Specifically, there are three categories of high-risk employees further explained in the Governor’s memorandum to stakeholders: (a) employees who are 65 years or older; (b) employees whose conditions are listed by the CDC as “at increased risk”; and (c) employees whose conditions are listed by the CDC as “might be at increased risk,” but based on the employee’s specific circumstances, the employee is in fact at increased risk for suffering severe illness from COVID-19. The memorandum further explained that employers must not require medical verification from high-risk employees in categories (a) and (b) above but may require such verification from employees in category (c).
What Can Washington Employers Do to Address Staffing Issues?
Implementing this amendment to the proclamation can be challenging, particularly where the employee’s leave of absence concurrently qualifies under other state or federal law for which medical verification is required. Washington employers are permitted to hire temporary employees so long as it does not impact a high-risk employee’s right to return to their employment position without negatively impacting their employment status. Washington employers may require those high-risk employees taking leave to provide up to five days’ advance notice of when they intend to report or return to work.
What Should Washington Employers Do Now?
- Check with your insurance company or insurance broker to understand how the proclamation’s requirements about continuing health care will impact your group health insurance plan. Some plans do not allow employees who are on extended unpaid leave to remain covered under an insurance plan.
If your insurer will not continue to carry a high-risk employee who is on extended leave, you will need to consider what, if any, coverage options you can extend to the employee and whether or not the costs associated with this coverage should be covered by the employer. These are complicated issues because federal laws generally control health benefit plans.
Consult with legal counsel before denying continuing benefits to high-risk individuals to ensure that you are not inadvertently violating Governor Inslee’s proclamation. Remember that accommodation remains an employee’s choice.
- Employers should not assume an employee who is in the higher risk group will need a particular type of accommodation (or any accommodation at all). Instead, employers should confirm that all employees know how to request an accommodation, should they seek one. Many employee handbook policies provide for reasonable accommodation, and that process is well-suited to address employees’ requests.
- Be creative and collaborative. The proclamation requires employers to “seek any and all options for alternative work assignments.” Employers should engage in a collaborative dialogue with high-risk employees seeking accommodation to find creative solutions to these unique working circumstances.
- Be careful when asking employees to verify their underlying condition. Under Washington and federal disability laws, employers should only ask for documentation for conditions that are not apparent and obvious and when the inquiry is job-related and related to business necessity.
- Be flexible on what documentation you will accept while health systems are overloaded. For example, employers should consider provisionally accepting an employee’s own statement that they are at a higher risk to conditionally grant an accommodation, while awaiting a health care provider’s certification.
- Employers who have collective bargaining agreements with provisions that are at odds with the proclamation may want to consult with legal counsel before making a decision not to enforce their agreements. Similar to the provisions of the proclamation regarding health care benefits, federal law may impact how employers choose to deal with provisions of the collective bargaining agreements that cannot be harmonized with the proclamation.
- Remind managers and supervisors that retaliation is prohibited and that these employees’ jobs are protected.
- Employers cannot take any action while the proclamation remains in effect that might adversely impact a high-risk employee’s eligibility for unemployment benefits.
- Washington employers might still be able to take employment action when no work reasonably exists, including reductions in force, but we recommend consulting with legal counsel to understand the risks of doing so.
Determining how best to navigate these uncertain times can be challenging. Lane Powell’s team of attorneys are here to help you develop and implement the strategy that supports your business and your employees. For more information, consult Lane Powell’s COVID-19 Resource Center or contact Katheryn Bradley, Hannah Ard, Mike Kitson, Priya Vivian or Shirley Lou-Magnuson.