Washington Proclamation re: Accommodation of High-Risk Employees

On April 13, 2020, Governor Inslee issued a Proclamation addressing issues related to employees at high risk for Covid-19:

From now until June 12, 2020 (unless extended) employers in Washington are prohibited from taking any action that is inconsistent with the following practices related to high-risk employees (as defined by the CDC*):

  • Failing to utilize all available options for alternative work assignments to protect high-risk employees, if requested, from exposure to the COVID-19 disease, including but not limited to telework, alternative or remote work locations, reassignment, and social distancing measures; and
  • Failing to permit any high-risk employee in a situation where an alternative work arrangement is not feasible to use any available employer- granted accrued leave or unemployment insurance in any sequence at the discretion of the employee.

In the event the employee’s paid time off exhausts during the period of leave, employers are prohibited from failing to fully maintain all employer-related health insurance benefits until the employee is deemed eligible to return to work. And, employers are prohibited from taking adverse employment action against an employee for exercising their rights under the Proclamation that would result in loss of the employee’s current employment position by permanent replacement.

Employers are permitted to hire temporary employees so long as it does not negatively impact the permanent employee’s right under the Proclamation to return to work without any negative ramifications to their employment status by the employer.

An employer may require an employee who does not report to work under the Proclamation to give up to five days’ advance notice of any decision to report to work or return to work. Further, employers are not prohibited from taking employment action when no work reasonably exists, such as in a circumstance of a reduction in force, but, where no work exists, employers shall not take action that may adversely impact an employee’s eligibility for unemployment benefits.

There has been no follow-up guidance on how an employer should address its obligation to maintain health insurance benefits where an employee cannot work (and where the applicable health insurance carrier does not permit continued coverage for employees on unpaid leave). There has also been no guidance on how the benefits provided by the Proclamation intersect with benefits provided to eligible employees under the FMLA, Washington Paid Family Medical Leave Act and/or Washington Paid Sick Leave law.

*The CDC current identifies the following employees as high risk:

  • People 65 years and older
  • People who live in a nursing home or long-term care facility
  • People of all ages with underlying medical conditions, particularly if not well controlled, including:
    • Chronic lung disease or moderate to severe asthma
    • Serious heart conditions
    • People who are immunocompromised (including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications)
    • Severe obesity (body mass index [BMI] of 40 or higher)
    • Diabetes
    • Chronic kidney disease undergoing dialysis
    • Liver disease

We will post again on the Proclamation if/when more guidance is provided.

 

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