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Washington State Governor Jay Inslee issued Proclamation 20-46 on April 13, 2020, requiring all public and private employers to offer accommodations to high-risk employees to protect them from exposure to COVID-19. The proclamation is effective from April 13, 2020 through June 12, 2020, unless extended by Governor Inslee.

The proclamation adopts the Centers for Disease Control and Prevention (CDC) definition of “high-risk,” which includes people over 65 years of age and people of any age who have certain chronic underlying health conditions. Washington employers are now required to provide these high-risk employees with alternative work arrangements that might involve telework, alternative or remote work locations, reassignment, or social distancing measures to protect from COVID-19 exposure.

High-Risk Employees May Use Company-Provided Leave if a Safe Alternative Arrangement is Not Feasible

If accommodating a high-risk employee with an alternative work arrangement is not feasible, the employer must permit the high-risk employee to utilize all available company-provided “accrued leave options” and cannot retaliate against the employee for doing so. However, employers cannot require high-risk employees to use company-provided accrued leave before applying for unemployment benefits.  Rather, high-risk employees must be permitted to use available accrued leave and unemployment insurance benefits in any sequence they desire.

If a high-risk employee chooses to utilize leave, the employer must continue to “fully maintain all employer-related health insurance benefits until the employee is deemed eligible to return to work,” even if the employee exhausts available paid time off and transitions to an unpaid leave status.

The proclamation does not explicitly address whether employers are required to provide leave as an accommodation if a high-risk employee who cannot be provided with an alternative work arrangement does not have accrued leave available or access to personal leave or other unpaid leave. However, employers should consider extending leave under those circumstances if an employee prefers an unpaid leave status over separation from employment. A high-risk employee who is denied leave requested to mitigate COVID-19 exposure and is permanently replaced could argue the employer violated the proclamation, as it generally protects high-risk employees against “loss of their position, loss of employment benefits, and retaliation for decisions made regarding whether and how to work for their employer pursuant to this Proclamation.”

And, employers that violate the proclamation are subject to criminal penalties.

What Employers Should Do

Washington employers should prepare to engage in an ADA-like interactive process with high-risk employees to determine whether the employees require COVID-19 related accommodations, what alternative work arrangements may be feasible, and what types of leave options are available to those whose exposure risk cannot be mitigated through alternative arrangements. This process will need to be highly individualized and there is unlikely to be a one-size-fits-all solution. High-risk employees’ needs will vary depending on a myriad of factors including their job functions, ages, severity and nature of underlying health conditions, financial needs, and family and living situations.

Employers grappling with how to accommodate high-risk employees should exercise care when asking about an employee’s underlying health condition. Keep in mind that the proclamation does not absolve employers of their obligations under the ADA, which regulates and restricts disability-related inquiries. Employers with questions about what is or is not permissible should check out our earlier blog discussing the EEOC’s guidance on how to handle the accommodation process, disability-related inquiries, and medical examinations during the COVID-19 pandemic.

Employers should also be sure to evaluate each high-risk employee’s potential eligibility for leave and/or job-protection under any applicable state and federal statutes, including the ADA and FMLA. Remember that high-risk employees with underlying health conditions may have a disability as defined by the ADA (which allows for leave as an accommodation under certain circumstances) or a qualifying serious health condition under the FMLA (which extends leave and job protection to eligible employees).

Finally, employers should be careful not to coerce high-risk employees into accepting alternative work assignments that are objectively less desirable or negatively impact their terms or conditions of employment. The proclamation is intended to protect those employees who desire an accommodation to reduce their risk of contracting COVID-19, and does not require employers to involuntarily reassign, take responsibilities away from, or place high-risk employees on unwanted leave. This is a fine line to walk, and even the best-intentioned employers could overstep accommodation into paternalism and wade into potential liability for age or disability discrimination.

What ReedGroup is Doing

ReedGroup is working with its clients with employees in Washington to ensure that compliant leave and accommodation options are available to be administered during the pandemic, including to those high-risk employees covered by Governor Inslee’s proclamation.

If you’re looking for assistance managing claims or to ensure compliance across your organization, ReedGroup has solutions for you. Check out our offerings here.

 

Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.