Update: WA Governor Extends Employment Protections to "High-Risk" Workers Indefinitely

Update: On July 29, 2020, Washington Governor Inslee issued Proclamation 20-46.2, which extends the protections for high-risk employees as originally set forth by Proclamation 20-46 "High-Risk Employees—Workers' Rights on April 13, 2020."

Employers should carefully review Proclamation 20-46.2 as it provides specific directives to employers, expands protections for "high-risk" workers, and outlines prohibitions that employers must abide by through the duration of the Proclamation. Unlike previous versions, this latest version incorporates a critical distinction in the CDC guidance between those who are considered "at increased risk" and those who "might be at an increased risk."

Proclamation 20-46.2 directs all Washington employers to continue to provide additional protections for "high-risk" workers "through the duration of the current state of emergency initially proclaimed in Proclamation 20-05, or until otherwise rescinded or amended."

High-Risk Workers Encouraged, but Not Required, to Stay Home

Notably, the Governor's Safe Start Phase Reopening Plan (Safe Start Plan) references the "High-Risk" populations and provides that during Phase 2 and 3 of the reopening, high-risk individuals are "[s]trongly encouraged, but not required, to stay home unless engaging in Phase 1, 2, or 3 permissible activities" (emphasis added).

Per the Safe Start Plan, the high-risk individuals can "[r]esume public interactions with physical distancing" in Phase 4. As is noted in the Safe Start Plan, these high-risk individuals have the option, but are not required to stay home. As of July 30, 2020, no Washington county has been approved to enter into Phase 4. Governor Inslee also recently announced that any advancements to the next phase has been paused indefinitely.

Who Is a "High-Risk" Worker?

A high-risk worker is defined by the Centers for Disease Control and Prevention (CDC) and includes persons who are:

• Of all ages with underlying medical conditions, particularly if not well controlled; and/or
  
• 65 years of age or older.

The CDC now distinguishes between those that are "at increased risk" of severe illness from COVID-19, and those that "might be at an increased risk" for severe illness from COVID-19. The CDC has compiled lists to enable employers to determine the applicable underlying medical conditions for each category, available at the CDC website here.

This distinction is critical under the update to the Proclamation, as employers may follow different guidelines depending on whether the employee qualifies under the "at increased risk" versus the "might be at an increased risk" category.

For employees who are in the "at increased risk" category or are over 65 years of age, employers must not require verification from a medical provider.

For employees who are in the "might be at an increased risk" category, employers may require verification from a medical provider. Employers may also require verification from a medical provider if an employee seeks to use a leave where a state or federal law, collective bargaining agreement ("CBA"), or contractual obligations separately requires the verification. Common examples of these include paid sick leave under Initiative 1433, employer-administered paid leave, Families First Coronavirus Response Act paid leave, and unemployment insurance compensation.

Directives for Employers Under the Updated Proclamation

As stated, and reinforced through recent EEOC Guidance, employers may not require high-risk workers to remain off the job simply because they fall into the high-risk category.

However, in Washington, if the high-risk employee prefers not to work at the employer's worksite, the employer is required to "seek any and all options for alternative work arrangements" and ensure that high-risk workers are "protected from job displacement, loss of employment benefits, and any requirement that they use personal accrued leave before applying for any available unemployment benefits" for the duration that the Proclamation is in effect.

Specifically, the Proclamation outlines the following directives:

1. All employers (public or private) must offer accommodations to high-risk workers to protect them from exposure to COVID-19. This includes, but is not limited to, telework, alternative or remote locations, reassignment, and social distancing measures.
   
2. If alternative work arrangements are not feasible, the high-risk workers must be permitted to use any available employer-granted accrued leave or unemployment insurance (in any sequence at the employee's discretion) without risk of adverse employment actions. An employer cannot require that a high-risk worker use accrued leave prior to the worker applying for unemployment.
   
3. If a high-risk worker has exhausted their employer-provided accrued leave, employers must maintain all employer-related health insurance benefits through the duration of the high-risk worker's absence. Although the Proclamation does not differentiate between insured and self-insured plans, self-insured plans may wish to consult counsel to discuss possible ERISA preemption.
   
4. Employers are prohibited from retaliating or taking an adverse action against high-risk workers under this Proclamation, including terminating or replacing employees.
   
5. Employers are prohibited from applying or enforcing any employment contracts or collective bargaining agreements (CBA) that contradict or interfere with the terms or intent of this Proclamation.
   
6. Employers may continue to hire temporary workers, so long as it does not negatively impact the high-risk workers' rights to return to their employment positions. Additionally, if no work reasonably exists, an employer may still take an employment action, such as a reduction in force.
   
7. Employers may require that high-risk workers provide five days' advance notice to the employer of any decision to report to work or to return to work under this Proclamation.
   
8. Employers must not require a medical verification for employees in the "at increased risk" category as defined by the CDC or over 65 years of age, but may require a medical verification for those employees that are in the "might be at an increased risk" category or seek to use a leave that normally requires a medical verification. 

Penalties for Non-Compliance

Violators of Proclamation 20-46.1 "High-Risk Employees – Workers' Rights may be guilty of a gross misdemeanor.

Recommendations for Employers

Employers should adhere to the following general guidance relating to high-risk employees:

1. Employers should not proactively identify individuals who they believe may be high-risk.
   
2. Employers should not refuse to let employees who are, or who are believed to be, high-risk continue to work. While high-risk employees have a right to request accommodations, they may also continue to work.
   
3. If an employee has self-identified as a high-risk worker and requests to be excused from working at the employer's worksite, the employer should proactively explore accommodations. Such accommodations may include: teleworking, temporary reassignment, alternative work location, or a leave of absence. Employers should document the accommodation process.
   
4. Employers should not terminate high-risk employees unless it is part of a reduction in force due to lack of work.
   
5. An employee's high-risk status should not be considered when determining whom to lay off.
   
6. Unless existing health plan policies extend insurance benefits throughout the duration of a leave of absence, whether paid or unpaid, employers must negotiate with their insurance carriers (or stop-loss carriers if self-insured) and amend the plans to extend coverage for either all workers or those workers who self-identify as high-risk until they are able to return to work.
   
7. Employers with union employees should review their collective bargaining agreements to ensure compliance with the Proclamation.
   
8. If an employee falls within the "might be at an increased risk" category and requests protection under the Proclamation or an employee seeks to use a leave that normally requires a medical verification, consider requiring the employee to provide the required medical verification.

We continue to encourage employers to work with experienced employment law counsel in navigating these requirements.

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.