Washington State Mandates Protections for "High-Risk" Employees Including Continuation of Employer-Related Health Insurance Benefits

Seyfarth Shaw LLP

On April 13, 2020, Washington Governor Jay Inslee amended his previously issued Order 20-05, which proclaimed a state of emergency associated with the spread of COVID-19.  The amended Order 20-05 provides protections for “High-Risk Employees,” defined as those at a higher risk of severe illness or death from COVID-19 according to the Centers for Disease Control and Prevention.

The order requires all Washington employers to explore, upon request from a High-Risk Employee, “any and all options” for alternative work arrangements to protect High-Risk Employees from job displacement, loss of employment benefits, and any requirement that they use personal accrued leave before applying for any available unemployment benefits.

If an employer determines that alternative work arrangements are not feasible, the employer must allow an employee to utilize all available accrued leave options free from risk of adverse employment action.

Employers are expressly prohibited from the following:

  1. Failing, if requested by a High-Risk Employee, to utilize all available options for alternative work assignments, including, but not limited to, telework, alternative or remote work locations, reassignment, and social distancing measures;
  2. Failing to permit a High-Risk Employee in a situation where an alternative work arrangement is not feasible to use any available employer-granted accrued leave or Washington unemployment insurance in any sequence at the employee’s discretion;
  3. Failing to fully maintain for a High-Risk Employee who is on leave all employer-related health insurance benefits until the employee is deemed eligible to return to work, even if the employee’s employer-granted accrued paid leave is exhausted during their period of leave; and
  4. Taking adverse employment action against a High-Risk Employee for exercising their rights under this order that would result in loss of the employee’s current employment position by permanent replacement.

Who are “High-Risk Employees?”

High-Risk Employees are people over 65 years of age, and people of any age who have certain chronic underlying health conditions. 

What employers are covered?

All public and private-sector employers operating in Washington.

What are “alternative work assignments?”

Alternative work assignments include, but are not limited to, telework, alternative or remote work locations, reassignment, and social distancing measures.

May an employer hire temporary employees under the order?

Yes, so long as doing so does not negatively impact the High-Risk Employee’s right under the order to return to their employment position without any negative ramifications.

May an employer require a High-Risk Employee to give advance notice before reporting back to work under the order?

Yes, employers can require High-Risk Employees to give up to five days’ advanced notice of their decision to report back to work from a leave.

Must employers retain High-Risk Employees even if there is no work? 

No.  Employers are permitted to take employment actions, such as reduction in forces, when “no work reasonably exists.”  Under the order, however, if no work reasonably exists, employers may not adversely impact a High-Risk Employee’s eligibility for unemployment benefits.

What if the applicable health insurance plan requires or allows an employer to cease the provision of health insurance benefits after an employee exhausts paid leave?

The order explicitly requires the health insurance benefits to continue.  We recommend that the employer consult with a benefits attorney before determining whether to continue providing health insurance benefits.

What if the order conflicts with an employee’s contract or the union contract?

The order specifically prohibits all employers and unions from applying or enforcing any employment contract provisions that contradict or otherwise interfere with the prohibitions and the intent of the order.  We recommend that employers subject to collective bargaining agreements governed by federal labor statutes consult with a labor lawyer before violating contract provisions, including seniority provisions associated with work assignments leaves and returns from such leaves.

Is there a penalty for violating this order?

Yes, violators of this order may be subject to criminal penalties and be guilty of a gross misdemeanor.  The maximum punishment for a gross misdemeanor is 364 days in county jail and/or a fine of up to $5,000. 

How long will this order be in effect?

The order is effective immediately and lasts until June 12, 2020 at 11:59 PM, unless extended.

What is the ultimate legal effect of this order?

This order appears to require employers to potentially deviate from health insurance plan and labor contract provisions and to offer preferential treatment to older employees and employees with disabilities.  While it remains to be seen how this order will be interpreted in connection with existing benefits, labor, employment, and other laws, all Washington employers should be aware of these additional requirements and pay special attention to all requests received from High-Risk Employees.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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