Vigilant Blog

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

Aug 20, 2020

WASHINGTON: Governor modifies COVID-19 ag safety, adds testing

COVID-19Safety and Health 

On August 19, 2020, Washington Governor Jay Inslee delivered yet another proclamation (Proclamation 20-57.1, Concerning the Health of Agricultural Workers), which imposes even more agricultural COVID-19 requirements for worksites, particularly around isolating and testing workers. Many items are the same as those previously required, but significant new mandates are noted below and listed first.

Testing: Previously, access to testing and transportation had to be provided, but now testing must specifically be provided within 24 hours when required by health department officials. Employers must also ensure timely COVID-19 (coronavirus) testing of the entire workforce, and prevent any worker who declines a test from working, if either of the following occurs: (1) the local health jurisdiction reports the employer’s workforce has more than nine positive cases within a 14-day window; or (2) the local health jurisdiction determines the employer’s workforce has an attack rate greater than or equal to 10 percent of the workforce within a 14-day window. (“Attack rate” is calculated by dividing the number of people who become sick by the number of people in the workforce.) Importantly, if you have multiple workplaces, you can treat each workplace as distinct for these testing purposes, as long as workers from one workplace aren’t interacting with coworkers from your other workplaces.

Isolation of workers in temporary worker housing: Employers who isolate COVID-19 symptomatic or positive workers in temporary worker housing must: (1) ensure a licensed health care professional visits the workers twice per day, at the employer’s expense, and at a minimum, the health care professional assesses symptoms, vital signs, and oxygen saturation via pulse oximetry, and performs a respiratory exam; (2) guarantee the workers have access to telephone service to access emergency care; (3) ensure workers in isolation have access to advanced life support emergency medical services within 20 minutes, and an emergency room with ventilator capability within one hour; (4) provide workers with information about paid leave and workers’ compensation; and (5) permit access to other medical professionals who offer health care services.

Definition of employee: The rules clarify that individuals who support agriculture activities in office settings, such as those performing sales, marketing, and other professional services, aren’t included in the definition of agriculture workers. The guidance says they may be subject to the Professional Services COVID-19 safety requirements instead, but since those requirements apply to organizations that send their workers out to various client sites to provide professional services, it’s more likely your office workers are simply subject to statewide requirements for all workers. Presumably, if the support staff spends time in the non-office setting of the agricultural operation, the agriculture rules would apply.

Definitions of workforce and workplace: These new terms are used heavily in the new testing requirements section and are therefore newly defined. “Workforce” is extremely broad, and includes all workers working for the same employer. “Employer” means all entities under affiliated ownership, as shown by common shareholders, board members, officers, business addresses, registered agents, and other factors that point to affiliation (presumably including control of day-to-day operations). “Workplace” is particularly important, as discussed above in the testing section, because it provides a possible avenue for containing the mass testing requirement if workers are isolated to an individual location.

Coordination between the Department of Labor and Industries (L&I) and the Department of Health (DOH): If it wasn’t obvious already, the rules and the proclamation make it clear these requirements will be enforced and modified by both L&I and DOH. In practical terms, and consistent with the experience of our members to date, this likely means DOH will collect information, monitor outbreaks, and share this information with L&I. L&I then operates as the enforcement and citation arm. However, it’s also very apparent the DOH has and will continue to flex its powers through testing orders.

Tips: If you already implemented the COVID-19 agriculture safety mandates that were published in April, May, and June, most of these new requirements will be manageable. However, some items, such as the new testing requirements, will present challenges. Your Vigilant safety professional and Vigilant Law Group employment attorney are already fielding numerous questions on these issues and stand ready to help you.

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.