Additional state law rights  for employees at high risk for coronavirus complications

On April 13, 2020, Governor Inslee issued Proclamation 20-46, which provides additional rights and protections for workers at high risk for coronavirus complications, effective through (at least) June 12, 2020.  To summarize, all Washington State employers – public and private – must:

  1. Use all available options for alternative work assignments to protect high-risk employees, if requested, from exposure to the COVID-19 disease, including but not limited to telework, alternative or remote work locations, reassignment, and social distancing measures;
  2. Permit any high-risk employee to use any available employer-granted accrued leave or unemployment insurance in any sequence at the discretion of the employee if there is no feasible alternative work arrangement;
  3. Fully maintain all employer-related health insurance benefits until the employee is deemed eligible to return to work if the employee’s paid time off exhausts during the period of leave; and
  4. Not take any adverse employment action against an employee for exercising their rights under this Proclamation that would result in loss of the employee’s current employment position by permanent replacement.  However, employers can hire temporary employees so long as it does not negatively impact the permanent employee’s right under this Proclamation to return to their employment position without any negative ramifications to their employment status.

In addition to the four requirements above:

  • Employers and labor unions cannot apply or enforce any employment contract provisions that contradict or otherwise interfere with the items listed above.
  • Employers can require an employee who does not report to work based on this Proclamation to give up to five days’ advance notice to the employer of any decision to report to work or return to work under this Proclamation.
  • Employers can take employment action when no work reasonably exists, such as in a circumstance of a reduction in force, for a high-risk employee during this Proclamation. However, if no work exists, employers shall not take action that may adversely impact an employee’s eligibility for unemployment benefits.
  • Violators of this order may be subject to criminal penalties pursuant to RCW 43.06.220(5).

“High-risk” employees, for purposes of this Proclamation, has the meaning described or defined in guidance issued by the Centers for Disease Control and Prevention.  The CDC’s guidance is online at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html.  It currently includes:

  • People 65 years and older
  • People who live in a nursing home or long-term care facility
  • People of all ages with underlying medical conditions, particularly if not well controlled, including:
    • People with chronic lung disease or moderate to severe asthma
    • People who have serious heart conditions
      • People who are immunocompromised Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications
    •  People with severe obesity (body mass index [BMI] of 40 or higher)
    • People with diabetes
    • People with chronic kidney disease undergoing dialysis
    • People with liver disease

The above is a summary only for general information and is not legal advice, and it is subject to change at any time.  If you would like more information about Proclamation 20-46 or other issues related to the impact of coronavirus on the workplace, feel free to contact ksutherland@omwlaw.com, bvanmoppes@omwlaw.com, or vbrown@omwlaw.com in our Seattle office; or emccool@omwlaw.com or gsparks@omwlaw.com in our Wenatchee office.