By: James P. Sikora

Originally written and published for the Vancouver Business Journal on May 26, 2020.

Many businesses that have been temporarily shuttered since March are slowly starting to clear the cobwebs and bring employees back into the workplace. In making decisions about when and how to bring employees back, employers must consider Gov. Jay Inslee’s Safe Start plan and guidance from federal and state agencies, including the U.S. Department of Labor, Centers for Disease Control and Prevention (CDC), Washington State Department of Health (DOH) and Washington State Department of Labor & Industries (L&I).

The rapid pace of change and wealth of information can make this process feel like drinking from a fire hose. To assist businesses in navigating this web of requirements and guidance, this article briefly summarizes two factors that all Washington employers should consider as employees return to work.

General Workplace Safety Considerations

Employers have a general obligation to maintain a safe workplace and protect employees from recognized hazards. Employers that do not develop and implement adequate safety controls in the workplace are exposed to L&I citations and possible civil liability. L&I recently issued updated guidance outlining general requirements for employers in addressing COVID-19 in the workplace. This guidance identified several preventive measures that employers must take: educate employees (and customers) about COVID-19 and how to prevent spread of the virus; ensure social distancing practices for employees and control customer flow; provide, at no cost, appropriate facial coverings, respiratory protection, and PPE (as appropriate for the work being performed); ensure frequent and adequate employee hand washing and surface sanitation; and require sick employees to stay home or go home if ill.

L&I’s guidance also recommends employers provide basic workplace hazard education to employees about COVID-19 and preventing transmission in the workplace. This includes posting information from the CDC and DOH in the workplace and informing employees about the social distancing and sanitation measures in place. This helps employees understand and abide by the safety measures being used to help prevent workplace transmission of the virus.

Employers should also carefully review Safe Start plan requirements, including any industry-specific guidance issued for Phase 1 and Phase 2 of the Safe Start plan. Complying with these requirements is not only a prerequisite for reopening under the Safe Start plan but also helps employers manage risk associated with reopening. Employers should then prepare a written COVID-19 preparedness and response plan that complies with these requirements and communicate this plan to employees. This will not only help businesses meet applicable requirements, but also help employees feel comfortable coming back to work knowing that safety measures are being used. But developing a written plan is only the first step. Businesses should also monitor the workplace to ensure employees are complying with safety measures and take appropriate action when employees do not comply.

High-Risk Employees

Some employees will understandably be concerned about safety as they begin to return. This may be especially true for employees who are at higher risk for COVID-19. Employers must be mindful of their obligations to these employees.

Gov. Inslee issued a proclamation on April 13 that temporarily expands accommodations for employees who are at higher risk for COVID-19, as defined by the CDC. Examples of employees in this high-risk category include people who satisfy any of the following criteria: 65 years and older; have chronic lung disease or moderate to severe asthma; have serious heart conditions; are immunocompromised; are severely obese; have diabetes; have chronic kidney disease and are undergoing dialysis; or have liver disease. This list is not exhaustive, so each situation should be individually evaluated. Employers may request medical documentation to confirm the employee is at high risk but should remain flexible in doing so. Employers should also avoid blanket policies requiring high-risk employees to stay at home. These policies will generally violate the proclamation and applicable disability law.

Upon the request of a high-risk employee, employers must explore all available options for alternative work assignments to protect the employee. This includes telework, alternative or remote work, reassignment, and social distancing measures. If an alternative work arrangement is not available, the employee may choose to use any available accrued leave (e.g., paid time off or paid sick leave) or apply for unemployment. The proclamation requires employers to “fully maintain” health insurance benefits, but it does not define what this means. Employers should take steps to ensure benefits do not lapse in an effort to comply with this requirement. The proclamation does not prevent employers from implementing a downsizing or reduction in force when “no work reasonably exists,” but employers must not take any action that will adversely impact the high-risk employee’s eligibility for unemployment benefits.

One thing that has been certain in this pandemic is circumstances will change. Employers should therefore continue to carefully monitor developments and update their practices and procedures accordingly.

For more information, contact attorney James P. Sikora at james.sikora@landerholm.com.

The above should not be construed as specific legal advice and is intended for general information purposes only.