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News, trends and analysis in employment law, HR, safety & workers' comp

May 24, 2021

WASHINGTON: Governor grants worker protections related to COVID-19

COVID-19Harassment & DiscriminationLeave LawsTermination & Resignation 

On May 21, 2021, Governor Jay Inslee issued Proclamation 21-08 “Safe Workers,” which prohibits Washington employers from taking any adverse employment action as a result of a worker receiving a COVID-19 (coronavirus) vaccine or needing time off related to the worker’s own COVID-19 vaccination, exposure, or illness. Time off to take a family member to be vaccinated or to care for a family member isn’t protected. The following COVID-19 activities by a worker are “qualifying events” that are protected by the governor’s proclamation:

  1. Getting vaccinated;
     
  2. Taking a reasonable period of time off (paid, unpaid, or otherwise available through the employment arrangement), to receive the vaccine or to recover from its side effects; or
     
  3. Taking time off (paid, unpaid, or otherwise available through the employment arrangement), when the worker is subject to a federal, state, or local quarantine or isolation order; advised by a health care official or provider to self-quarantine or self-isolate; or experiencing symptoms and seeking a medical diagnosis or treatment.

The proclamation prohibits all adverse employment actions against employees who experience these qualifying events related to COVID-19. Examples of prohibited actions include:

  1. Terminating employment, suspending workers, demoting them, or denying promotions;
     
  2. Not allowing workers to choose any available paid leave provided by existing state laws, a collective bargaining agreement, or employer policy to cover the qualifying event, unless otherwise allowed by existing federal or state leave laws;
     
  3. Denying unpaid leave to workers who don’t have any paid leave available to cover the qualifying event, unless otherwise allowed by existing federal or state leave laws;
     
  4. Denying use of, or delaying payment for, paid leave, wages, or other amounts owed to workers;
     
  5. Reducing the number of scheduled work hours;
     
  6. Altering workers’ preexisting work schedules;
     
  7. Reducing workers’ rates of pay; and
     
  8. Threatening or taking action based upon the immigration status of workers or their family members.

Tips: If employees need time off due to their own qualifying events related to COVID-19 listed above, the safest approach is to grant the time off without counting it against their attendance record, even if they’ve exhausted other available leave. The second and third examples of prohibited actions in the list above say that you cannot deny such leave “unless otherwise allowed by existing federal or state leave laws.” Unfortunately, it’s unclear how this would work in practice. Suppose a new hire has worked only 2 days for you and is ordered to quarantine for 14 days after being in close contact with someone who has COVID-19. Under normal circumstances, that person likely wouldn’t be entitled to any protected time off at that early phase of their employment, so in theory you could take the position that existing federal and state leave laws allow you to issue an attendance warning or terminate their employment. But under that interpretation, the governor’s proclamation wouldn’t provide any leave protection at all. Therefore we recommend providing whatever amount of leave is needed for employees to resolve the COVID-19 qualifying events above, if at all possible. If they’ve exhausted their other protected leave (such as Washington paid sick leave or federal Family and Medical Leave Act (FMLA) leave), and it’s causing an undue hardship on your business to keep them employed, contact your Vigilant Law Group employment attorney to weigh your options.

Also, keep in mind that Washington state law provides protection to workers who are at high risk of contracting a disease during a statewide pandemic (such as COVID-19) due to their age or medical condition. As we reported here, the newly signed Health Emergency Labor Standards Act (HELSA) (ESSB 5115 (2021)), says employers cannot discharge, permanently replace, or discriminate against a high-risk worker who asks for an accommodation or takes leave because they're high-risk. In addition, as we previously reported, Governor Inslee’s Proclamation 20-46.3 (issued on April 8, 2021) is still in effect, extending protections for workers 65 and older and those identified by the Centers for Disease Control (CDC) as being at heightened risk for severe illness from COVID-19. FAQs on Proclamation 20-46.3 are available here. Questions? Talk with your Vigilant Law Group employment attorney.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.

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