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:
- Governor’s Proclamation 20-25.3 “Adjusting and Extending Stay Home-Stay Healthy to May 31, 2020,” online at https://www.governor.wa.gov/sites/default/files/20-25.3%20-%20COVID-19%20Stay%20Home%20Stay%20Healthy%20-%20Reopening%20%28tmp%29.pdf?utm_medium=email&utm_source=govdelivery.
- "Safe Start Washington A Phased Approach to Recovery,” online at https://www.governor.wa.gov/sites/default/files/SafeStartWA_4May20.pdf?utm_medium=email&utm_source=govdelivery
- The Washington State Department of Labor & Industries “General Coronavirus Prevention Under Stay Home, Stay Healthy Order,” online at https://lni.wa.gov/forms-publications/F414-164-000.pdf.
- The Washington State Department of Health “Workplace and Employer Resources & Recommendations,” online at https://www.doh.wa.gov/Coronavirus/workplace.
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.
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