Washington Governor Jay Inslee’s April 13 proclamation temporarily expands accommodations for employees who are at "high risk" for severe coronavirus illness. Washington employers should immediately prepare to make significant HR modifications for such employees that may include alternative work assignments, leave and unemployment benefits, and continued health care benefits, among other things.
The proclamation adopts the Centers for Disease Control’s (CDC) definition for employees who are at “higher risk” for severe coronavirus illness as those who meet any one of the following factors:
It is important to remember that employers cannot identify high-risk employees or even ask employees to self-identify. Requesting that information would be eliciting disability-related information. Rather, employees will need to identify themselves when seeking an accommodation.
The Governor’s proclamation grants new legal protections to high-risk employees working in Washington state. Employers must be prepared to engage in the reasonable accommodation process, grant leave and continue health insurance benefits under the following circumstances:
On July 29, Governor Jay Inslee issued Proclamation 20-46.2, which amended the original proclamation and 20-46.1 in key ways. First, the amendment extends the expiration of this proclamation until the end of the state of emergency which the Governor declared under Proclamation 20-05, or until otherwise rescinded or amended.
Second, “high-risk employees” is more clearly defined to track guidance issued by the Centers for Disease Control and Prevention (CDC). Specifically, there are three categories of high-risk employees further explained in the Governor’s memorandum to stakeholders: (a) employees who are 65 years or older; (b) employees whose conditions are listed by the CDC as “at increased risk”; and (c) employees whose conditions are listed by the CDC as “might be at increased risk,” but based on the employee’s specific circumstances, the employee is in fact at increased risk for suffering severe illness from COVID-19. The memorandum further explained that employers must not require medical verification from high-risk employees in categories (a) and (b) above but may require such verification from employees in category (c).
Implementing this amendment to the proclamation can be challenging, particularly where the employee’s leave of absence concurrently qualifies under other state or federal law for which medical verification is required. Washington employers are permitted to hire temporary employees so long as it does not impact a high-risk employee’s right to return to their employment position without negatively impacting their employment status. Washington employers may require those high-risk employees taking leave to provide up to five days’ advance notice of when they intend to report or return to work.
Determining how best to navigate these uncertain times can be challenging. Lane Powell’s team of attorneys are here to help you develop and implement the strategy that supports your business and your employees. For more information, consult Lane Powell’s COVID-19 Resource Center or contact Katheryn Bradley, Hannah Ard, Mike Kitson, Priya Vivian or Shirley Lou-Magnuson.
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