The recent COVID-19 outbreak poses numerous challenges for employers, including how to navigate the already complex requirements imposed by Washington state’s various employment and leave laws. Below we address some of the common issues that many Washington employers are facing.

Enhanced Protections for High-Risk Employees

On July 29, 2020, Gov. Jay Inslee issued an amendment to his prior emergency proclamation concerning workers who are at a high risk of contracting COVID-19, as well as an updated guidance memo. The guidance memo reflects recent changes to CDC guidance, which now distinguishes between individuals who are “at increased risk” for severe illness from COVID-19 and those who “might be at increased risk.” Under the amended proclamation, an employee is high risk if they are:

• 65 years or older;
• Categorized as “at increased risk,” or
• Categorized as “might be at increased risk,” and are, in fact, at an increased risk of suffering severe illness from COVID-19 due to their medical circumstances and workplace conditions.

Employees who fall under one of these categories are entitled to certain workplace protections, including: 

• The choice of an alternative work assignment, including telework, alternative or remote work locations if feasible, and social distancing measures;
• High-risk employees must be permitted to use any accrued leave or unemployment benefits if an alternative work assignment is not feasible;
• If a high-risk employee exhausts available paid time off, the employer must maintain health insurance benefits while the employee is off the job; and
• Employers are prohibited from permanently replacing high-risk employees for exercising their rights under the proclamation.

Employers may not require verification from a medical provider for employees who are older than 65 or who fall within the “at increased risk” category. Employers may require such verification when the employee either falls within the “might be at an increased risk” category or seeks to use any leave where a state or federal law, collective bargaining agreement or contractual obligation requires such verification.

These protections remain in effect for the duration of Washington’s current state of emergency.

Employee Leave

Paid Time Off

Employers who have a general PTO policy that allows employees to take time off for vacation, sick and/or personal reasons should continue to allow employees to use those days in accordance with their policy.

Washington State Paid Sick Leave

Non-exempt employees in Washington state accrue paid sick leave. Such employees are permitted to take paid sick leave for themselves or a family member, as necessary to diagnose, care for or treat a COVID-19 infection. Paid sick leave is also available to employees who have been directed to quarantine themselves or, in some cases, to employees who are immunocompromised and have been advised to self-isolate.

Non-exempt employees may also take paid sick leave if their workplace or their child’s school has been closed by a public official for health-related reasons. Employers may allow workers to use paid sick leave if the business decides on its own to temporarily close in response to COVID-19, but are not required to do so.

In order to reduce the strain on the healthcare system, Washington’s Department of Health has issued guidance recommending that employers not require verification from employees who take sick leave. In support of this guidance, Washington’s Department of Labor and Industries has indicated that employers may temporarily waive any verification requirements contained in their written sick leave policies.

SeaTac Minimum Employment Standards Ordinance

Employees covered by SeaTac’s Minimum Employment Standards Ordinance (generally non-exempt hospitality and transportation workers) may use accrued leave for the diagnosis, care or treatment of COVID-19 infection for themselves or a family member or for the closure of the employee’s place of business, a child’s school or place of care, or due to a public health emergency.

Tacoma Paid Leave Ordinance

Tacoma’s Paid Leave Ordinance applies to exempt and non-exempt employees who perform at least 80 hours of work in Tacoma within a calendar year, including employees who telecommute from home in Tacoma.

Employees may use accrued leave for the diagnosis, care or treatment of COVID-19 infection for themselves or a family member; for the closure of the employee’s place of business; or to care for a child whose school or place of care has been closed for any health-related reason by order of a public official.

Washington Paid Family and Medical Leave (PMFL)

An employee who has been diagnosed with COVID-19, or who is caring for a family member who has been so diagnosed, may be eligible for paid leave if a health care provider certifies that the illness meets the definition of a “serious health condition” and the employee is otherwise qualified. Employees who have been laid off or furloughed may still qualify for paid medical leave if they satisfy the PFML hours requirement.

Quarantine and school closures are not PFML-qualifying events at this time.

Layoff Considerations

Notice Requirements

While Washington does not have specific layoff warning requirements, layoffs affecting more than 50 employees may trigger notification requirements under the federal Worker Adjustment and Retraining Notification (WARN) Act. If the layoffs arise from the business impact of COVID-19, employers may not have to provide the full statutory notice.

Final Paychecks

When an employee is dismissed or laid off, their final paycheck must be paid on or before the next regularly scheduled payday. Employers may not withhold a final paycheck, even if the employee has not yet returned employer property (e.g., laptop, keys, uniform). There is no state law in Washington requiring that employees who are laid off or terminated be compensated for their unused PTO, sick pay or vacation time. Employers are, however, required to comply with the terms of their established policies or employment agreements.

Paid Sick Leave for Non-Exempt Employees

Employers are not required to pay non-exempt employees for unused sick leave accrued under Washington’s Paid Sick Leave law. However, if such employees are not paid for unused sick leave, any previously accrued sick leave must be reinstated if the employee is rehired within 12 months.

Unemployment Insurance and Standby

In addition to traditional unemployment benefits, workers who are temporarily laid off or who have had their hours reduced as a result of COVID-19 may be eligible to receive unemployment benefits on “standby” status. Workers on standby status are not required to search for work while receiving benefits. To qualify for standby status, a worker must have been a full-time employee, be returning to full-time work, and have a probable return-to-work date. Eligibility for standby is determined on a case-by-case basis. The emergency rule Washington recently enacted allows workers to remain on standby status for up to 12 weeks.

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