Gov. Inslee Modifies Employment Protections to "High-Risk" Employees

Nearly a year ago, on April 14, 2020, Washington Governor Jay Inslee issued Proclamation 20-46 "High-Risk Employees-Workers' Rights," which provided protections to certain individuals with conditions that made them susceptible to complications from COVID-19, due to age or underlying conditions. More recently, on April 8, 2021, Governor Inslee issued updates to the Proclamation (Updated Proclamation) to allow employers additional flexibility to seek medical verification from employees who are high-risk and to discontinue health coverage for high-risk employees who continue to be out on leave.

While certain high-risk employees were previously permitted to self-attest to their high-risk status due to underlying medical conditions, employers are now permitted to request verification of employees' need for accommodations, regardless of the underlying condition. The Updated Proclamation notes the increased vaccination rates in Washington and greater medical provider availability have prompted the updates.

Elements of the Proclamation Still in Effect:

The Updated Proclamation continues to provide job protection and access to alternative work arrangements to high-risk employees. Additionally, when a suitable alternative work arrangement is not available, covered high-risk employees must still be allowed to access any available employer-granted accrued leave or unemployment benefits, in any order, at the discretion of the employee.

See our prior advisories on the ongoing accommodation requirements and job protections here and here.

Modifications to the Proclamation (Effective April 23, 2021):

Under the Updated Proclamation, employers can now request verification of the need for the accommodations by following the interactive process required by state and federal disability laws. Based upon information obtained during the interactive process, employers may alter the high-risk employee's accommodations by providing a minimum of 14 days' advanced written notice that itemize the accommodation changes. Under the Updated Proclamation, the earliest an employer may provide notice of changes to accommodations is on Friday, April 9, 2021.

Further, employers are now permitted to terminate employer-provided health coverage for high-risk employees who are on leave and/or unemployment benefits unless the health plan provides otherwise or the employee is eligible to continue their health benefits under applicable state or federal law, such as the Family Medical Leave Act. Employers must provide 14-days' advanced written notice that health benefits will terminate and must continue to provide coverage through the end of the month in which the 14-days' advanced notice is provided.

This notice period is intended to allow employees sufficient time to elect to continue their health insurance coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA), or to seek other coverage through the Health Benefit Exchange or private insurers.

Additional guidance about the Updated Proclamation from the Governor's Office can be found here. The guidance provides information on how aggrieved employees can file claims with the Washington Department of Labor and Industries. This may lead to an increase in claims.

DWT will continue to provide further updates on the revisions to the workplace protections to high-risk employees.

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.