Washington Governor Inslee recently modified the statewide phased reopening plan with a Safe Start County-by-County plan – while also imposing new requirements on all employers by industry. The new plan gives individual counties greater flexibility to advance through each phase as they hit certain metrics, including disease activity, health care system readiness, testing availability, contact tracing, and number of confirmed cases. They will be used as targets rather than hardline rules, and good performance in one metric can offset a near miss in another. Moreover, counties may be permitted to resume certain activities in the next phase even where their progress falls short of supporting wholesale advancement. In short, the new plan offers a more nuanced approach to reopening than the governor’s initial plan. What do Washington employers need to know about this new reopening strategy?

Employer Requirements

For employers, that the County-by-County plan comes less than a month after the Governor unveiled the statewide approach serves as an important reminder of the speed with which the legal landscape is changing during the pandemic. The new plan includes brand-new requirements for all employers. The governor’s office has been busy releasing additional requirements and guidance for more than 20 specific industries, such as professional services, in-store retail, restaurants, and others. All of the industry-specific reopening guidance can be found here.

Under the County-by-County plan, all employers must implement certain safety measures, which must stay in place throughout every phase of reopening regardless of each county’s status. These are:

• Ensure employees wear a cloth face covering unless their exposure dictates a higher level of protection under L&I guidance (there are a few exceptions, including where employees work alone or need accommodation for a medical condition or disability);
• Follow L&I General Coronavirus Prevention guidance and Department of Health Workplace and Employer Resources and Recommendations;
• Educate employees in the language they know best about coronavirus, how to prevent its transmission, and the employer’s coronavirus policies and protocols;
• Maintain physical distancing and use other prevention measures such as staggered start times and physical barriers;
• Provide all appropriate Personal Protective Equipment (PPE) and train employees on proper use;
• Ensure frequent handwashing and use disposable gloves where tools or other items are shared;
• Frequently clean and sanitize the workplace, with particular emphasis on commonly touched areas;
• Screen employees for signs and symptoms of COVID-19 at the start of their shift; send sick workers home; cordon off areas where employee with probable or confirmed COVID-19 illness worked until the area and equipment is sanitized; follow CDC cleaning guidelines;
• Prominently display a sign strongly encouraging customers to wear cloth face coverings (understanding that employers are encouraged to require customers to wear cloth face coverings to protect their employees);
• Follow Governor Inslee’s Proclamation protecting high-risk workers; and
• Implement any industry-specific requirements.

King County

On June 5, Washington’s most populous county took advantage of the new plan when it entered a modified Phase 1. Among other things, personal services, professional services, and dine-in restaurants may resume, but some businesses are not permitted to reopen to the same extent they will be in Phase 2. 

For instance, dining is limited to just 25% of tables at dine-in restaurants during King County’s modified Phase 1, but may operate at 50% capacity in Phase 2. Likewise, in-store retail is limited to 15% occupancy – half as what will be allowed in Phase 2. King County also requires cloth face coverings in most public settings or where physical distancing cannot be maintained, and businesses must post required signage.

Additional Reopening Considerations

While not conditions of reopening, there are several additional issues you should consider as you reopen:

• Save copies of all recall and rehire letters to assist with CARES Act/PPP loan forgiveness, and to address issues such as paid leave balances, changes in pay, and new employment policies and safety protocols.
• Prepare a Families First Coronavirus Response Act (FFCRA) compliant policy and leave request and approval forms. Remember that FFCRA leave is available through the end of the year for employers with 500 or fewer employees and certain information must be maintained to aid in qualification for related tax credits.
• Consider modifications to your paid leave policies and communicate any changes to your employees in writing.