Governor Jay Inslee has ordered that all Washington employers immediately implement additional protections for “high-risk” workers through at least 11:59 p.m. on June 12, 2020. On April 13, 2020, Governor Inslee issued Proclamation 20-46 “High-Risk Employees – Workers’ Rights,” (the Proclamation) which amends Proclamation 20-05 (Stay Home—Stay Healthy Order).
We strongly encourage employers to carefully review the Proclamation 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.
Who Is a "High-Risk" Worker?
Through the duration of the Proclamation, employers are 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.”
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.
Directives for Employers Under the Proclamation
Specifically, the Proclamation outlines the following directives:
- All employers (public or private) must offer accommodations to high-risk workers in order 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.
- 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.
- 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 ERISA should preempt the application of this requirement to self-insured plans, the Proclamation is likely intended to interpret “health insurance benefits” broadly and we anticipate that self-insured plans will be pressured to follow suit.
Employers are prohibited from retaliating or taking an adverse action against high-risk workers under this Proclamation, including terminating or replacing employees.
Employers may still 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.
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.
Penalties for Non-Compliance
Violators of Proclamation 20-46 “High-Risk Employees – Workers’ Rights may be guilty of a gross misdemeanor.
Recommendations for Employers
We recommend employers follow the below general guidance relating to high-risk employees:
- If an employee has self-identified as a high-risk worker, 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.
- Employers must provide high-risk workers with an explanation of their rights under the Proclamation, including that workers may opt to preserve their employer-provided time off and apply for unemployment benefits without risk of job loss.
- Employers should not terminate any high-risk employees unless it is part of a reduction in force due to lack of work. An employee’s high-risk status should not be considered when determining whom to lay off.
- 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.
We encourage employers to work with their legal counsel in navigating these new 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.