Update April 15: This blog has been updated to reflect additional guidance about employment protections to "high-risk" individuals in Washington State.
Governor Jay Inslee has ordered that all Washington employers immediately implement additional protections for “high-risk” workers through at least 11:59 p.m. on June 12, 2020. On April 13, 2020, Governor Inslee issued Proclamation 20-46 “High-Risk Employees – Workers’ Rights,” (the Proclamation) which amends Proclamation 20-05 (Stay Home—Stay Healthy Order).
We strongly encourage employers to carefully review the Proclamation as it provides specific directives to employers, expands protections for “high-risk” workers, and outlines prohibitions that employers must abide by through the duration of the Proclamation.
Who Is a "High-Risk" Worker?
Through the duration of the Proclamation, employers are required to “seek any and all options for alternative work arrangements” and ensure that high-risk workers are “protected from job displacement, loss of employment benefits, and any requirement that they use personal accrued leave before applying for any available unemployment benefits.”
A high-risk worker is defined by the Centers for Disease Control and Prevention (CDC) and includes persons who are:
- Of all ages with underlying medical conditions, particularly if not well controlled; and/or
- 65 years of age or older.
Directives for Employers Under the Proclamation
Specifically, the Proclamation outlines the following directives:
- All employers (public or private) must offer accommodations to high-risk workers in order to protect them from exposure to COVID-19. This includes, but is not limited to, telework, alternative or remote locations, reassignment, and social distancing measures.
- If alternative work arrangements are not feasible, the high-risk workers must be permitted to use any available employer-granted accrued leave or unemployment insurance (in any sequence at the employee’s discretion) without risk of adverse employment actions. An employer cannot require that a high-risk worker use accrued leave prior to the worker applying for unemployment.
- If a high-risk worker has exhausted their employer-provided accrued leave, employers must maintain all employer-related health insurance benefits through the duration of the high-risk worker’s absence. Although ERISA should preempt the application of this requirement to self-insured plans, the Proclamation is likely intended to interpret “health insurance benefits” broadly and we anticipate that self-insured plans will be pressured to follow suit.
- Employers are prohibited from retaliating or taking an adverse action against high-risk workers under this Proclamation, including terminating or replacing employees.
- Employers are prohibited from applying or enforcing any employment contracts or collective bargaining agreements ("CBA") that contradict or interfere with the terms or intent of this Proclamation.
- Employers may continue to hire temporary workers, so long as it does not negatively impact the high-risk workers' rights to return to their employment positions. Additionally, if no work reasonably exists, an employer may still take an employment action, such as a reduction in force.
- Employers may require that high-risk workers provide five days' advance notice to the employer of any decision to report to work or to return to work under this Proclamation.
Penalties for Non-Compliance
Violators of Proclamation 20-46 “High-Risk Employees – Workers’ Rights may be guilty of a gross misdemeanor.
Recommendations for Employers
We recommend employers follow the below general guidance relating to high-risk employees:
- If an employee has self-identified as a high-risk worker, the employer should proactively explore accommodations. Such accommodations may include: teleworking, temporary reassignment, alternative work location, or a leave of absence. Employers should document the accommodation process.
- Employers should provide high-risk workers with an explanation of their rights under the Proclamation, including that workers may opt to preserve their employer-provided time off and apply for unemployment benefits without risk of job loss.
- Employers should not terminate any high-risk employees unless it is part of a reduction in force due to lack of work. An employee’s high-risk status should not be considered when determining whom to lay off.
- Unless existing health plan policies extend insurance benefits throughout the duration of a leave of absence, whether paid or unpaid, employers must negotiate with their insurance carriers (or stop-loss carriers if self-insured) and amend the plans to extend coverage for either all workers or those workers who self-identify as high-risk until they are able to return to work.
- Employers with union employees should review their collective bargaining agreements to ensure compliance with the Proclamation.
We encourage employers to work with their legal counsel in navigating these new requirements. For additional guidance on Proclamation 20-05 (Stay Home—Stay Healthy Order), click here.
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.