ALERT: High-risk employees in Washington may take protected leave

Washington Governor Jay Inslee has amended his Stay Home – Stay Healthy order to permit protected leave for employees who are at a higher risk to contract COVID-19 (coronavirus), specifically those aged 65 and over and those with certain chronic underlying health conditions, as defined by the Centers for Disease Control (CDC). The amended order, which was issued on April 13, 2020, took effect immediately and is set to expire on June 12, 2020. The main points for employers with Washington workplaces are as follows:

• Upon request from high-risk employees, the order requires you as the employer to use all available options for alternative work assignments to protect them from COVID-19 exposure. Examples include telework, alternative or remote work locations, reassignment, and social distancing measures.
   
• If an alternative work arrangement isn’t feasible in response to a high-risk employee’s request, you must permit them to use any available accrued leave or to apply for unemployment (at the employee’s discretion). We understand this to mean that even if employees have exhausted all normal company-provided leave, you must allow them to take unpaid time off.
   
• You must maintain all employer-related health insurance benefits until the employee is deemed eligible to return to work (even if the time off is unpaid or the employee is receiving unemployment benefits).  
   
• You cannot take adverse employment action against any employee for exercising their rights under the order. This includes permanently replacing the employee.
   
• Neither you nor any union representing your employees may apply or enforce any employment contract provisions that contradict or otherwise interfere with the governor’s order.

You may temporarily hire employees to fill any position that’s vacant due to a high-risk employee choosing not to work, provided the high-risk employee is allowed to return to their position upon return to work. You may also require employees to give you five days’ notice before they intend to return to work. The order doesn’t advise, recommend, or require these high-risk employees to stay home.

In addition to this order, Governor Inslee jointly announced a Western States Pact with California Governor Gavin Newsom and Oregon Governor Kate Brown, to coordinate measures for reopening businesses while protecting residents. Currently, Washington’s stay-at-home order is in effect through May 4, while California and Oregon’s orders don’t have expiration dates. It remains to be seen whether this pact will result in California or Oregon taking similar measures as Washington to allow high-risk workers to take protected leave. Vigilant will monitor developments and keep members informed.

Tips: Consult your third-party administrator or group health insurance carrier to ensure you can provide continued employer-sponsored health benefits to a high-risk employee who isn’t working. If you don’t already have the information, we believe you may request documentation from employees who request time off under the governor’s order to verify they’re at least age 65 or have a qualifying underlying health condition. If it’s difficult for employees to obtain a health care provider’s certification, we suggest requiring them to self-certify in writing (an email would be fine).

Keep in mind that unpaid leave is a last resort after exploring alternative work assignments such as telework, other work locations, reassignment, and social distancing. The steps you need to take under the order to accommodate a high-risk employee are similar to the steps you would take when determining how to reasonably accommodate an employee under the Americans with Disabilities Act (ADA). Document the steps and conversations you have with any high-risk employees who request an accommodation. Notably, the governor’s order doesn’t mention any exception for workers at essential businesses. We interpret this to mean that high-risk employees have the right to request an accommodation and avoid exposure to COVID-19, even if they’re critical workers at an essential business.

Questions? Contact your Vigilant Law Group employment attorney.