WASHINGTON: COVID-19 safety duties expanded for agriculture

On May 28, 2020, Washington Governor Jay Inslee delivered yet another proclamation (Proclamation 20-57, Concerning the Health of Agricultural Workers), which imposes even more agricultural COVID-19 requirements for worksites, and then on June 2, 2020, issued interpretive guidance on those requirements. Many items are the same as those previously required, but significant new mandates are noted below and listed first.

Coordination with other requirements: The new agricultural COVID-19 (coronavirus) requirements don’t replace the previously issued requirements for agriculture, food processing and warehouse, and temporary worker housing (TWH) that we reported on here and here. Instead, the new requirements stack on top of those, although to the extent there are any conflicts, the new requirements apply.

Applicability: Virtually all agricultural and farming operations in Washington (i.e., businesses identified in Washington Administrative Code (WAC) 296-307-006), packing warehouses, and employer-provided transportation and housing. Meat or other food processing operations aren’t covered, although they’re subject to the food processing operation requirements linked above.

Effective date and duration: Effective June 3, 2020, through the end of the governor’s State of Emergency.

Face coverings: New in these requirements, but consistent with the larger Safe Start plan also reported in this newsletter, face coverings must be worn when required by this Department of Labor and Industries (L&I) chart. In most cases employees must wear at least a cloth face covering any time six feet of distance can’t be maintained. If employees can’t or won’t provide their own cloth face covering, employers must provide them (see Section (c) of the interpretive guidance linked above for more information).

Handwashing: The new rules decrease the distance to handwashing stations at outdoor work sites from within one-quarter mile (440 yards) of each employee’s worksite to within 110 yards of employees at all times, and disallow alternatives such as hand sanitizer (see Section (d) of the interpretive guidance linked above for more information). Consistent with the original requirements, all worksites (both indoor and outdoor) and temporary worker housing must ensure handwashing stations have soap, tepid water, disposable paper towels, and a trash can. Employers must also ensure workers wash their hands for more than 20 seconds at specified times before, during, and after the shift.

Education and training: New items in this category include a requirement for you as an employer to provide information to workers on how to file a workplace complaint with L&I; how to apply for medical leave, paid sick leave, or workers’ compensation benefits; and (if applicable) a disclosure that your organization is exempt from the Families First Coronavirus Response Act (FFCRA). Consistent with the original requirements, you must provide education on COVID-19 symptoms and preventive measures.

COVID-19 response plan: New items here include immediately informing the relevant county health department of any positive employee tests (although the county is likely to already be aware) or employees quarantined for possible exposure. As the employer, you must include the business name, location, and contact information for the employees. Consistent with the original requirements, you must also have a plan in place for actions such as isolating sick workers (which can include using a regional isolation center), dealing with outbreaks, and disinfecting areas where sick workers were present. Review our Model Policy, Washington Manufacturing Facility COVID-19 Exposure Control Plan, for a place to start with such a plan.

Daily health screening: New in this area is the requirement for employers to complete a temperature and symptom check at the beginning of each day, including questions about symptoms of not only the employee but also household members. We encourage you to use the Washington Department of Health Daily COVID-19 screening guidelines (updated May 28, 2020), and work with your Vigilant Law Group employment attorney on follow-up questions.

COVID-19 testing: New in this area is a requirement when “feasible” to ensure symptomatic employees have access and transportation to COVID-19 testing. You must designate “testing facilitators” to act as a resource for employees to seek testing.

Transportation: No more than two individuals may sit in the same row on a bench seat and they must be seated at opposite ends of the bench. When the transportation includes an aisle between seats, individuals are to be positioned with one employee per side, staggered in an alternating, diagonal pattern. In addition to any personal protective equipment (PPE) or other protective measures, drivers must be separated from passengers by a barrier. Consistent with existing requirements for company-provided transportation, you must clean and disinfect surfaces and implement physical distancing or a combination of PPE and other administrative or engineering controls.

Group shelter participants (GSP): New, and incredibly burdensome, is a set of requirements for indoor and outdoor worksites to keep GSP cohorts separate (see pages 6 and 7 of the requirements). GSPs, who previously had to be sequestered during transportation and work from non-GSP workers, now cannot “comingle” (undefined in the rules) even with other GSP cohorts. For example, transporting more than one GSP cohort in a bus could present an enforcement risk. Work with your Vigilant safety professional and Vigilant Law Group employment attorney on your specific issues. Consistent with existing requirements, TWH arrangements involving GSPs must ensure cohorts are physically distanced even when in housing, and comply with many other requirements, as we previously reported.

Physical distancing: Consistent with the original requirements, physical distancing of six feet must be maintained and where not feasible, PPE, barriers, or other appropriate hazard controls are mandatory. Review our Model Policy, Social Distancing Policy.

Workplace disinfecting: Consistent with the original requirements, high-touch areas must be cleaned regularly and at specific times (e.g., before and after breaks and meal periods), using proper cleaning techniques and products.

PPE: Consistent with general safety requirements, you must supply any mandatory PPE at no cost to employees, including gloves, goggles, face shields, and face masks. Clean PPE must be available each workday.

Employee rights: Consistent with existing requirements, employees can refuse to perform work they believe is unsafe and may file a complaint about it. Also, employers are reminded of protections, including protected leave, for high risk individuals who refuse to work, which we previously reported on.

Variances: Consistent with existing mandates, employers or operators of TWH can request variances when they can show they have an alternative in place that provides equal protection.

Tips: If you already scrambled to get your house in order in response to workplace mandates that were published in April and May, most of these new requirements will be manageable. However, some items such as the new GSP rules will no doubt present extreme challenges to employers. Your Vigilant safety professional and Vigilant Law Group employment attorney are already fielding numerous questions on these issues and stand ready to help you.