Washington State Issues "Stay Home — Stay Healthy" Order

Update April 2: Governor Inslee announced that the "Stay Home—Stay Healthy" Order is extended to at least May 4th.

Update March 30: This advisory has been updated to include the latest information on Washington State's "Stay Home — Stay Healthy" Order

On March 23, 2020, Washington Governor Jay Inslee ordered a "Stay At Home" Order immediately for all Washington residents for at least two weeks. In doing so, Governor Inslee joined many other state and local jurisdictions in ordering residents to stay at home, with limited exceptions, to help slow the spread of the COVID-19.

As of today, 16 states have issued "Stay At Home" orders, requiring that approximately 40 percent of U.S. citizens remain at home.

When Does the "Stay At Home" Order Go Into Effect?

Effective immediately, all gatherings of people for social, spiritual, and recreational purposes, including weddings and funerals, are prohibited. By the end of day on March 25, 2020, all businesses, except for “essential” businesses, must cease operations.

Businesses that can operate using telecommuting should continue to do so. Below is additional information on which businesses are deemed “essential” under the Order. Additionally, restaurants may continue to remain open providing to-go orders and delivery options.

If My Business Can Operate Remotely, Can I Keep My Business Open?

Yes. Businesses that can operate using telecommuting can continue with their operations, regardless of whether they are deemed “essential” businesses.

What Are the "Essential" Businesses Under Governor Inslee's "Stay At Home" Order?

For many employers, it is a highly factual inquiry to determine whether their business is considered "essential to the healthy functioning of our community." Governor Inslee’s office provided a detailed list of "essential" employers. On March 31, Governor Inslee issued a Guidance Bulletin that further defines and clarifies the "essential" business.

All businesses and activities must comply with the social distancing and sanitation measures established in the Stay Home—Stay Healthy Order.

After reviewing this list, if an employer’s business is not listed or it is unclear whether the business is considered "essential," you may submit a form to the state for clarification via its online portal.

List of Essential Businesses in Washington State

As a high-level overview, workers in the following industries may be declared "essential" workers and/or businesses. This is not an exhaustive list.

• Healthcare and Public Health – This is expansive, and includes dentists, psychologists, pharmacists, midwives and doulas, social workers, speech pathologists, laboratory personnel, distributors of medical equipment, behavioral health workers, workers that manage health plans, veterinarians, etc.; workers and facilities supporting essential research, development, operations and clinical trials, including biotech therapies.
• Emergency Services – Law enforcement, first responders, and workers who support the operation, inspection, and maintenance of essential public works facilities and operations, such as dams, bridges, and sewer mains.
• Food and Agriculture – Includes groceries, pharmacies, and retailers of food and beverages, restaurant (carry-out and delivery operations only); food manufacturer employees and their supplier employees; workers supporting commercial geoduck facilities or commercial fishing.
• Energy – Workers in the electricity industry; petroleum workers; and natural and propane gas workers; and renewable energy generation, natural gas generation and biofuel refining (and IT workers supporting these operations, subject to the March 31 Guidance Bulletin).
• Water and Wastewater – Workers needed to operate and maintain drinking water and wastewater infrastructure.
• Transportation and Logistics – Employees supporting or enabling transportation functions, mass transit workers, ferry workers; transportation services (taxis), certain truck drivers, postal and shipping workers, air transportation employees.
• Communications and Information Technology - Workers who support radio, television, newspapers and media service; maintenance of communication infrastructure; installation, maintenance and repair technicians or engineers; certain IT workers.
• Other Community-Based Government Operations and Essential Functions – Critical government workers; elections personnel; weather forecasters; workers supporting public and private childcare establishments and schools with distance learning; hotel workers; plumbers, electricians, exterminators and others servicers; certain commercial retail stores; workers in certain government agencies; laundromats; in-home nannies (but only those who are providing childcare to for “essential” workers).
• Critical Manufacturing – Workers manufacturing items for certain industries, such as for medical supply chains, food and agriculture, energy, transportation, etc.
• Hazardous Materials – Workers at nuclear facilities, medical waste, supporting hazardous cleanup and operations.
• Financial Services – Workers needed to process and maintain financial transactions; provide consumer banking and lending.
• Chemical - Workers supporting the chemical and industrial gas supply chains; safe transportation of chemicals; operation and maintenance of facilities.
• Defense Industrial Base - Workers who support the essential services required to meet national security commitments to the federal government and U.S. Military.
• Automotive – Automotive repair facilities; and limited sales and leasing activities at licensed new and sued car and truck dealerships (subject to restrictions under the March 31 Guidance Bulletin).
• Maintenance – Outdoor maintenance, including vegetation, if necessary to prevent spoliation, avoid imminent damages, or address emergency repairs. Notably, other forms of “maintenance” may fall within some of the above categories.
• Recreation – Camping and workers supporting private campgrounds. Notably, this is tailored to supporting long-term residents, and not for vacationing. Golf is not essential, and recreational fishing and shellfish harvested are not essential.
• Real Estate – moving companies for commercial and household goods, subject to the restrictions in the March 31 Guidance Bulletin.
• Retail – Retail which is, in part, deemed essential is in total deemed “essential,” unless the non-essential retail can be easily separated from the essential retail area (i.e. different locations, building, separate staff etc.). Tobacco and vapor sellers are only essential if they sell food.

I work in construction. Is this an "essential business"?

Likely, no. Governor Inslee issued a Memorandum on March 25 to clarify that "[i]n general, commercial and residential construction is not authorized under the Proclamation because construction is not considered to be an essential activity." There are three enumerated exceptions for construction workers. These include

1. construction related to essential activities described in the Proclamation;
2. to further a public purpose related to a public entity or governmental function or facility, including but not limited to publicly funded low-income housing; or
3. to prevent spoliation and avoid damage or unsafe conditions, and address emergency repairs at both non-essential businesses and residential structures.

The full Memorandum is located here.

Do "essential workers" need a special pass or permit to go to work?

No. At this time, essential workers are not required to carry any special permit or documentation to travel to work.

Can a "non-essential" business have "essential" workers?

Yes. The Executive Order explicitly provides that for "non-essential" businesses, an "essential employee" may be an individual that is "carrying out the minimum basic operations" of the company. This is defined to include: "the minimum activities necessary to maintain the value of the business' inventory, preserve the condition of the business' physical plant and equipment, ensure security, process payroll and employee benefits, facilitate employees of the business being able to continue to work remotely from their residences, and related functions."

In short, "non-essential businesses" may identify a minimal number of employees that are necessary to carry out the "minimum basic operations" for the business. All employers are advised to adhere to health and safety standards, including "social distancing," for any employees designated to be in the office.

Are There Consequences for Not Following the Order?

Yes. Failure to adhere to the Order may result in a gross misdemeanor. Those violations can be reported, investigated, and referred to the prosecutor’s office and then punishable by a fine and/or jail time.

On March 30, Governor Inslee, along with Attorney General Bob Ferguson, announced measures to enforce the Order for businesses. They outlined three general tiers:

1. First Warning: Violators will be notified that they need to comply with the Order
2. Second Warning: Law enforcement will issue citations, suspension notices, or revoke a business license
3. If the violation continues, the case may be referred to law enforcement and/or the Attorney General’s office for civil or criminal charges

Notably, there is no guarantee that law enforcement will follow the outlined structure. If you have questions regarding your business, you should consult with an attorney.

Conclusion

Governor Inslee encourages Washington residents to still get outside and exercise appropriate social distancing. By implementing the Order, he hopes to slow the spread of COVID-19 in Washington.

He also reminds all Washingtonians: "We are in this together, Washington."

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.