What Does “Return to Work” Look Like?

On May 4, 2020, Washington Governor Jay Inslee issued “Safe Start Washington A Phased Approach to Recovery.”  It includes broad, general requirements for businesses that are by now familiar to all of us – wash your hands, maintain social distancing, etc.  It also requires compliance with Department of Labor & Industries (L&I) and Department of Health (DOH) guidelines, and it cross-references a checklist developed by Challenge Seattle and the Washington Roundtable.  Additionally, businesses are expected to implement any additional requirements developed specifically for their industry.

The logistics of compliance present a challenge for employers.  Here are some points to keep in mind:

  • Health and safety requirements vary by industry.  For example, childcare and construction have detailed requirements that are quite different from others.
  • There is no single go-to place to find all of the health and safety requirements, and they are continually changing.  The primary sources for the requirements are L&I, DOH, and Governor’s Proclamations, but there are also City and County requirements as well as federal requirements from the CDC and the Department of Labor, among others.  Many of these requirements were adopted on an emergency basis and are not included in published sets of rules or regulations.
  • Any necessary physical changes to the workplace must be made before returning employees to work.  Examples include spacing for social distancing, removing excess chairs, putting up signs with capacity limits on conference room doors, installing barriers, etc.
  • Locate suppliers now for things you will need that are in short supply – masks, gloves, disinfectant, hand sanitizer, plexiglass shields, toilet paper, paper towels, bleach, etc.
  • Develop a written plan and policy for employees that addresses all the requirements for employee health and safety.  Be sure it explains who is responsible for implementing each aspect of the plan, and hold employees accountable for compliance.  Checklists help.
  • Having protocols that employees don’t follow is not a good practice.  Your health and safety plan should reflect the realities of your workplace; for example, a plan that includes taking each employee’s temperature and logging the results may not be feasible. A temperature self-check before coming to work could be substituted if current requirements allow it.
  • Develop a plan for customer/client service.  It could address health screening, social distancing, capacity limits, masks, preorders, changes to payment methods, procedures to keep people from congregating outside the facility, clear messaging of expectations, and the flexibility to address changes as industry standards change.
  • Liability to employees for failure to maintain a safe workplace is limited under Title 51 RCW (the Worker’s Compensation/Industrial Insurance laws), but there are some still circumstances where employers may be found liable.
  • Liability to business visitors (customers, vendors, etc.) is primarily based on tort law, and is very fact-specific.  For some service providers and businesses, a waiver/release may be appropriate.
  • Insurance policies may have an exclusion of coverage for pandemic-related claims.
  • Laws such as the Americans with Disabilities Act (ADA) and HIPAA apply to health screenings and reasonable accommodation, with some exceptions related to the declaration of a pandemic.
  • Wage and hour laws also still apply, which may raise questions about compensability of time spent on health screens, donning and doffing PPE, telework, pay cuts, and furloughs for exempt employees, etc.
  • Employees may refuse to return to work out of fear of contracting COVID-19, which may have implications for unemployment eligibility and PPP loan forgiveness.

For additional guidance on the Governor’s May 4, 2020 Proclamation, see:

This analysis is a broad overview only and should not be relied upon for any purpose, especially since the laws, regulations, rules, orders, government guidance, and industry standards keep changing.  If you need legal advice, engage an attorney who has experience in this area.

What does “Return to Work” look like?

On May 4, 2020, Washington Governor Jay Inslee issued “Safe Start Washington A Phased Approach to Recovery.”  It includes broad, general requirements for businesses that are by now familiar to all of us – wash your hands, maintain social distancing, etc.  It also requires compliance with Department of Labor & Industries (L&I) and Department of Health (DOH) guidelines, and it cross-references a checklist developed by Challenge Seattle and the Washington Roundtable.  Additionally, businesses are expected to implement any additional requirements developed specifically for their industry.

The logistics of compliance present a challenge for employers.  Here are some points to keep in mind:

  • Health and safety requirements vary by industry.  For example, childcare and construction have detailed requirements that are quite different from others.
  • There is no single go-to place to find all of the health and safety requirements, and they are continually changing.  The primary sources for the requirements are L&I, DOH, and Governor’s Proclamations, but there are also City and County requirements as well as federal requirements from the CDC and the Department of Labor, among others.  Many of these requirements were adopted on an emergency basis and are not included in published sets of rules or regulations.
  • Any necessary physical changes to the workplace must be made before returning employees to work.  Examples include spacing for social distancing, removing excess chairs, putting up signs with capacity limits on conference room doors, installing barriers, etc.
  • Locate suppliers now for things you will need that are in short supply – masks, gloves, disinfectant, hand sanitizer, plexiglass shields, toilet paper, paper towels, bleach, etc.
  • Develop a written plan and policy for employees that addresses all the requirements for employee health and safety.  Be sure it explains who is responsible for implementing each aspect of the plan, and hold employees accountable for compliance.  Checklists help.
  • Having protocols that employees don’t follow is not a good practice.  Your health and safety plan should reflect the realities of your workplace; for example, a plan that includes taking each employee’s temperature and logging the results may not be feasible. A temperature self-check before coming to work could be substituted if current requirements allow it.
  • Develop a plan for customer/client service.  It could address health screening, social distancing, capacity limits, masks, preorders, changes to payment methods, procedures to keep people from congregating outside the facility, clear messaging of expectations, and the flexibility to address changes as industry standards change.
  • Liability to employees for failure to maintain a safe workplace is limited under Title 51 RCW (the Worker’s Compensation/Industrial Insurance laws), but there are some still circumstances where employers may be found liable.
  • Liability to business visitors (customers, vendors, etc.) is primarily based on tort law, and is very fact-specific.  For some service providers and businesses, a waiver/release may be appropriate.
  • Insurance policies may have an exclusion of coverage for pandemic-related claims.
  • Laws such as the Americans with Disabilities Act (ADA) and HIPAA apply to health screenings and reasonable accommodation, with some exceptions related to the declaration of a pandemic.
  • Wage and hour laws also still apply, which may raise questions about compensability of time spent on health screens, donning and doffing PPE, telework, pay cuts, and furloughs for exempt employees, etc.
  • Employees may refuse to return to work out of fear of contracting COVID-19, which may have implications for unemployment eligibility and PPP loan forgiveness.

For additional guidance on the Governor’s May 4, 2020 Proclamation, see:

This analysis is a broad overview only and should not be relied upon for any purpose, especially since the laws, regulations, rules, orders, government guidance, and industry standards keep changing.  If you need legal advice, engage an attorney who has experience in this area.

Implications of New EEOC Guidance on Employers Requiring COVID-19 Testing

Background.  The EEOC has a role in the novel coronavirus pandemic because it enforces anti-discrimination laws, including the Americans with Disabilities Act (“ADA”).  The ADA substantially limits an employer’s ability to make medical inquiries and conduct medical examinations, including actions such as taking employees’ temperatures or requiring them to provide body fluid or other samples for testing.  However, there is an exception that applies when employers have a reasonable belief that employees have a medical condition that poses a “direct threat” to themselves or to others.

COVID-19 testing is now allowed.  As the coronavirus pandemic has progressed, the EEOC has repeatedly updated its guidance regarding what medical inquiries and medical examinations employers can require.  On April 23, 2020, the EEOC updated its guidance to allow employers to require a COVID-19 test before permitting employees to enter the workplace.  This follows previous guidance issued March 17, 2020 allowing employers to take employees’ temperatures during the novel coronavirus pandemic.

Implications of COVID-19 testing for employers.

  • The test administered must be safe and accurate, and such tests are currently in short supply.
  • Who will pay for cost of the test and whether employees will be paid for time spent traveling to a test site and for time spent getting tested should be determined prior to requiring testing.
  • The decision on who to test must be “job related and consistent with business necessity.”  For example, testing all employees who enter the workplace because an employee with COVID-19 would be a direct threat to the health of others is acceptable.  Being selective in who to test (e.g., hourly workers but not salaried workers) would not be acceptable unless the determination was “job related and consistent with business necessity.”  Testing based on criteria such as age, national origin, or parental status would not be acceptable.
  • Even if accurate, a negative test is only a snapshot in time.  An employee who tests negative today could have COVID-19 tomorrow.
  • If undertaken, testing should be part of a broader structure of policies and procedures for maintaining a safe workplace, not an ad hoc decision.
  • If employees are covered by a collective bargaining agreement, COVID-19 testing would be a subject of bargaining.
  • Public sector employees in Washington State have a right to privacy that requires balancing the government’s “compelling interest” in testing “based in the necessities of national or community life such as clear threats to public health, peace, and welfare.” Robinson v. City of Seattle, 102 Wn. App. 795, 10 P.3d 452, 467 (2000) (drug testing).  Thus, any testing program for public sector employees should document that the employees need to be tested because their duties will genuinely implicate public safety. 10 P. 3d at 470.

Reasonable accommodations.  The updated EEOC guidance also answers questions about accommodating employees at high risk for complications of COVID-19, accommodating employees with existing mental health conditions that are exacerbated by the novel coronavirus pandemic, and modifying accommodations that employers had in place prior to the pandemic because the accommodations do not apply to the employees’ current work environment or because the accommodations now place an undue burden on the employer.

More changes likely as employees return to work.  The EEOC recognizes the changing dynamics of the pandemic, and it has emphasized that “The EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19  . Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.

The EEOC’s updated guidance is online at https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=.

Please keep in mind that the above is an overview of a complex topic that is constantly changing, and that the information in this email may become outdated very quickly.  If you have a specific concern, you should seek legal advice and not rely on this article.  For more information, contact ksutherland@omwlaw.com in our Seattle office or emccool@omwlaw.com or gsparks@omwlaw.com in our Wenatchee office.

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.

New CDC Guidance on Keeping #Coronavirus-Exposed Employees Working and Possible Impacts on Paid Emergency Sick Leave

As of April 8, 2020, the CDC is advising that critical infrastructure workers remain working after actual or potential coronavirus exposure.  The advisement includes protective measures that such workers are to take and provides for them to go home immediately if they develop coronavirus symptoms.   The new interim guidance applies to workers in all 16 sectors that are considered critical infrastructures.  The interim guidance is online at https://www.cdc.gov/coronavirus/2019-ncov/community/critical-workers/implementing-safety-practices.html, and it states, in part, as follows:

To ensure continuity of operations of essential functions, CDC advises that critical infrastructure workers may be permitted to continue work following potential exposure to COVID-19, provided they remain asymptomatic and additional precautions are implemented to protect them and the community.

A potential exposure means being a household contact or having close contact within 6 feet of an individual with confirmed or suspected COVID-19. The timeframe for having contact with an individual includes the period of time of 48 hours before the individual became symptomatic.

Critical Infrastructure workers who have had an exposure but remain asymptomatic should adhere to the following practices prior to and during their work shift: Critical Infrastructure workers who have had an exposure but remain asymptomatic should adhere to the following practices prior to and during their work shift:

  • Pre-Screen: Employers should measure the employee’s temperature and assess symptoms prior to them starting work. Ideally, temperature checks should happen before the individual enters the facility.
  • Regular Monitoring: As long as the employee doesn’t have a temperature or symptoms, they should self-monitor under the supervision of their employer’s occupational health program.
  • Wear a Mask: The employee should wear a face mask at all times while in the workplace for 14 days after last exposure. Employers can issue facemasks or can approve employees’ supplied cloth face coverings in the event of shortages.
  • Social Distance: The employee should maintain 6 feet and practice social distancing as work duties permit in the workplace.
  • Disinfect and Clean work spaces: Clean and disinfect all areas such as offices, bathrooms, common areas, shared electronic equipment routinely.

This interim guidance pertains to critical infrastructure workers, including personnel in 16 different sectors of work including:

  • Federal, state, & local law enforcement
  • 911 call center employees
  • Fusion Center employees
  • Hazardous material responders from government and the private sector
  • Janitorial staff and other custodial staff
  • Workers – including contracted vendors – in food and agriculture, critical manufacturing, informational technology, transportation, energy and government facilities

The list of all 16 of the critical infrastructures is online at: https://www.cisa.gov/identifying-critical-infrastructure-during-covid-19. Though not specifically referenced in the interim guidance, the list of all 16 critical infrastructures includes health care workers.

This interim guidance may impact employees’ eligibility for compensation under the Emergency Paid Sick Leave Act (EPSLA) where “The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19” if the health care provider’s advice cited the old CDC guidance as the reason to self-quarantine. The EPSLA is online at https://www.congress.gov/bill/116th-congress/house-bill/6201/text?q=%7B%22search%22%3A%5B%22hr+6201%22%5D%7D&r=1&s=2.

This interim guidance is subject to change at any time, as are the criteria for eligibility for compensation under the EPSLA.

This post is not legal advice, and should not be relied on.  For more information, please contact Karen Sutherland (ksutherland@omwlaw.com), Beth Van Moppes (bvanmoppes@omwlaw.com), or VaLiesha Brown (vbrown@omwlaw.com) in our Seattle office, or Erin McCool (emccool@omwlaw.com) or Gil Sparks (gsparks@omwlaw.com) in our Wenatchee office.

Expansion of Washington state unemployment eligibility criteria (retroactive to March 23, 2020)

The State of Washington adopted an emergency rule on April 8, 2020 that broadens eligibility for unemployment benefits.  The emergency rule, which we originally posted on April 9, was the subject of a technical correction on April 10, 2020 to address a grammatical issue.  The updated rule is posted below:

WAC 192-150-101 Job separations related to COVID-19. For individuals who became unemployed on or after March 23, 2020, the individual will be considered to have been laid off due to a lack of work when:

  1. (a) The individual was prohibited by a government official from working outside their home or place of residence as a result of COVID-19; and (b) The individual does not have the ability to telework with pay; or
  2. (a) The individual was not prohibited by a government official from working outside their home or place of residence as a result of COVID-19; and
    (b) The individual is either:
    (i) A person identified by the centers for disease control as someone at high-risk for severe illness from COVID-19;
    (ii) In the same household as a person identified by the centers for disease control as someone at high-risk for severe illness from COVID-19;
    (iii) Providing direct care to a person identified by the centers for disease control as someone at high-risk for severe illness from COVID-19; or
    (iv) Working at a worksite outside of the individual’s home or place of residence that does not follow rules or guidelines published by the United States Department of Labor, the Washington department of labor and industries, or the Washington department of health for protecting workers from COVID-19 exposure; and
    (c) The individual does not have the ability to telework with pay.

These new eligibility requirements are broader than the federal unemployment criteria under the FFCRA, so individuals who fit under subpart (2) of the Emergency Rule may not be eligible for the extra federal unemployment benefits* but they would be eligible for the regular state unemployment benefits.  Here is a link to ESD’s most recent guidance, but it may not be current (check back periodically for updates): https://esd.wa.gov/newsroom/rulemaking/covid-19.  Please keep in mind that the rules and interpretation are subject to change at any time, and that the forms employers and employees receive from ESD when someone applies for unemployment may not be current.

*To be eligible for the additional federal unemployment benefits, someone at high risk would have to meet the following criteria:

(a) In General.–An employer shall provide to each employee employed by the employer paid sick time to the extent that the employee is unable to work (or telework) due to a need for leave because:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  4. The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).

This posting is for general information only, and is not legal advice.  For additional information, contact Karen Sutherland (ksutherland@omwlaw.com), Beth Van Moppes (bvanmoppes@omwlaw.com), or VaLiesha Brown (vbrown@omwlaw.com) in our Seattle office, or Erin McCool (emccool@omwlaw.com) or Gil sparks (gsparks@omwlaw.com) in our Wenatchee office.