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Employees at High Risk for Severe COVID-19 Illness May Be Entitled to Job Protections in Washington State

Washington State recently issued new protections for workers who are at “high risk” of severe illness or death from COVID-19. The protections, created by Governor Jay Inslee’s Proclamation 20-46, affect both essential businesses and nonessential businesses expecting to reopen between April 13 and June 12, 2020, when the emergency proclamation expires, unless it is lawfully extended in accordance with Washington’s emergency powers laws.

Generally, Proclamation 20-46 requires that employers either (1) accommodate “high risk” employee requests for remote work or alternative work assignments to mitigate COVID-19 transmission risk, or (2) permit “high risk” employees to use their available employer-granted accrued leave or unemployment benefits and receive continued employer-provided medical coverage for the duration of any such absence. Proclamation 20-46 also makes it unlawful for employers to retaliate or take adverse action against “high risk” workers. The proclamation relies on the Centers for Disease Control and Prevention’s (CDC) definition of individuals at high risk for severe illness from COVID-19: (a) people 65 years and older; (b) people who live in a nursing home or long-term care facility; and (c) people of all ages with certain underlying medical conditions. The CDC lists the following higher-risk individuals with underlying medical conditions:

  • “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; or

  • People with liver disease.”

The CDC’s definition of “high risk” may change as understanding of the novel coronavirus develops.

Below are answers to frequently asked questions (FAQ) about the requirements of Proclamation 20-46.

What are an employer’s accommodation obligations?

An employer must accommodate a “high risk” employee by implementing alternative work assignments, such as telework, alternative or remote work locations, reassignment, and social distancing measures.

What does an employer do if it cannot accommodate a “high risk” employee?

If an employer cannot accommodate a high-risk employee, it must permit the employee to use any available employer-granted accrued leave or unemployment benefits. The employer must permit the employee to use accrued leave or unemployment benefits in any sequence, at the employee’s discretion.

Once the employee exhausts all accrued leaves, the employer must “fully maintain” all employer-related health insurance benefits until the employee is “deemed eligible” to return to work. The proclamation does not detail how the employer is to “fully maintain” health insurance benefits or determine if an employee is “deemed eligible” to return. If a “high risk” employee determines he or she can return to work, the employee must provide the employer with five days’ notice of his or her intent to return to work.

An employer may hire a temporary worker to fill in for a “high risk” worker, but the employer must not negatively impact the “high risk” worker by doing so. In other words, the proclamation mandates job reinstatement for “high risk” employees when the COVID-19 risk has passed or can be managed.

May Proclamation 20-46 be implemented differently in unionized environments?

No. Employers and labor unions are prohibited from “applying or enforcing any employment contract provisions that contradict or otherwise interfere” with the proclamation.

Does Proclamation 20-46 apply if an employee is currently furloughed?

The proclamation does not apply if the employee is already off work due to the shutdown.

Does Proclamation 20-46 affect future furloughs?

The proclamation states that these new requirements do not impact an employer’s right to take “employment action when no work reasonable exists,” such as a reduction in force. In such a situation, the employer’s only obligation is to “not take action that may adversely impact an employee’s eligibility for unemployment benefits.”

What are the consequences of failing to comply with Proclamation 20-46?

Violations of the proclamation (and all other of the governor’ proclamations) may result in criminal penalties.

Under what authority was Proclamation 20-46 issued?

The proclamation was issued pursuant to Washington’s statutory provisions granting the governor emergency powers. There is some question whether the proclamation is within the governor’s emergency powers, as the proclamation creates new substantive rights without legislative support. In addition, if an employer has a self-insured group health plan, the federal Employment Retirement Income Security Act of 1974 (ERISA) almost certainly preempts the portion of the proclamation that purports to require employers to “fully maintain” such coverage when doing so would be in conflict with the terms of the group health plan.

How long will Proclamation 20-46 be in effect?

The Proclamation is currently in effect until 11:59 p.m. on June 12, 2020, or unless withdrawn or properly extended in accordance with Washington law.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 125

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