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May 13, 2021

WASHINGTON: New law creates more pandemic worker protections

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Several important developments have recently occurred in Washington state. We're addressing the following topics in this post - find the full articles below.
 

  • New law creates more pandemic worker protections. On May 11, 2021, Governor Jay Inslee signed ESSB 5115, the Health Emergency Labor Standards Act (HELSA), creating labor standards that automatically take effect during statewide public health emergencies, including the COVID-19 (coronavirus) pandemic. Read more below.
  • Overtime to phase in over 3 years for ag employees. On May 11, 2021, Governor Jay Inslee signed ESSB 5172, which phases in overtime over the next three years for non-dairy agricultural workers. Read more below.
  • 4th set of COVID-19 worker housing rules issued. On May 9, 2021, Washington’s Departments of Labor & Industries (L&I) and Health (DOH) again extended and modified existing COVID-19 (coronavirus) safety rules for temporary worker housing (TWH) in the agriculture industry.
  • Governor signs three family and medical leave bills. Governor Jay Inslee recently signed three bills related to family and medical leave in Washington.
     

FULL ARTICLES

WASHINGTON: New law creates more pandemic worker protections
On May 11, 2021, Governor Jay Inslee signed ESSB 5115, the Health Emergency Labor Standards Act (HELSA), creating labor standards that automatically take effect during statewide public health emergencies, including the COVID-19 (coronavirus) pandemic. HELSA establishes a frontline worker occupational disease presumption, requires employer notices and reporting, and cements high-risk worker protections. The new law took effect immediately upon the governor’s signature. Here are the key provisions:
 
Occupational disease presumption for frontline workers. During a statewide public health emergency, the Washington Department of Labor and Industries (L&I) will automatically presume an occupational disease exists for purposes of workers’ compensation if a frontline employee contracts an infectious or contagious disease that is the subject of the public health emergency and the disease is transmitted through respiratory droplets, aerosols, or contact with a contaminated surface. The new law lists numerous categories of frontline workers, including first responders, care providers, teachers, hospitality industry workers, and retail employees who have in-person interaction with the public at stores that remain open to the public. Most common among Vigilant members are employees performing food processing, food manufacturing, food distribution, farm, and meat packing work. The presumption that the disease is work-related is rebuttable if you can prove that the employee caught the disease elsewhere or was working from home or on leave during the relevant quarantine period. The good news is that even if the claim is accepted, its costs won’t affect your workers’ comp experience rating.
 
Written notice to exposed employees. During a public health emergency, if you receive notice of a potential (workplace) exposure to the disease that is the subject of the public health emergency, you must let workers know. You must notify all employees (as well as union representatives and any employers of subcontracted workers) who were “on the premises at the same worksite” as a “qualifying individual” that they may have been exposed to the identified infectious or contagious disease. A “qualifying individual” is someone who tested positive for the disease, received a positive diagnosis by a licensed health care provider, was ordered to isolate by a public health official, or died from the disease. Your duty to notify workers is triggered if you’re notified of a potential exposure in any of the following ways: (1) A public health official or licensed medical provider tells you that an employee was exposed to a qualifying individual at work; (2) An employee or their emergency contact tells you that they’re a qualifying individual; or (3) An employee tests positive for the disease under your own company testing protocol. For example, if the public health department notifies you that a vendor who was onsite for a sales meeting has since tested positive for COVID-19, then you must notify all employees who were physically at the worksite that day.
 
You must provide the written notice within one business day and state that the employee “may have been exposed to” the infectious or contagious disease that is the subject of the public health emergency. The notice can’t include any employee names or personal identifying information. The notice must be in English and the language understood by a majority of your employees and sent however you normally communicate with your employees (e.g., personal delivery, email, text, etc.). These notice requirements apply to all employers, except in the health care industry, which has its own obligation to provide notice on a tighter time frame (24 hours).
 
Reporting outbreaks to L&I. If you have more than 50 employees at a worksite, then within 24 hours of confirming that 10 or more of your employees at the worksite have tested positive for the infectious or contagious disease, you must report the positive tests to L&I. The law doesn’t indicate the window of time for counting positive cases, although L&I says it will release guidance soon. Until we have this guidance, we recommend using a 14-day window, consistent with the governor’s current Proclamation 20-25.6, “Safe Start – Stay Healthy.” Similar to the employee notice, this reporting can’t include employee names or personal identifying information.
 
High-risk worker protections. During a public health emergency, you 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 order to be protected under this portion of the law, an employee must meet two conditions: (1) their age or medical condition must be identified by the Centers for Disease Control (CDC) as putting an individual at high risk of severe illness for the infectious or contagious disease that is the subject of the public health emergency; and (2) a medical provider must have recommended the employee’s removal from the workplace due to that risk.
 
Tips: While all HELSA provisions take effect immediately, the requirement to provide written notice to exposed employees will crop up most often. Prepare a template notice now—in English and the language understood by a majority of the employees—that you can modify and deliver to all employees at the affected worksite within one business day. Ensure that it doesn’t include any personal information, but do state that the recipient employee “may have been exposed,” describe what they should do (e.g., monitor symptoms and follow reporting procedures), and reiterate your safety protocols. Please see our newly created Model Form, Washington Notice of Disease Exposure for model language. If you have any questions about this notice or how HELSA applies to you, contact your Vigilant Law Group employment attorney.
 
 
WASHINGTON: Overtime to phase in over 3 years for ag employees
On May 11, 2021, Governor Jay Inslee signed ESSB 5172, which phases in overtime over the next three years for non-dairy agricultural workers. It also bars lawsuits filed on or after November 5, 2020, that seek overtime for agricultural and dairy employees unless those lawsuits are enforcing this new law (e.g., the overtime that’s required for agricultural employees during and after the phase-in period). Under Washington's Minimum Wage Requirements and Labor Standards Act, most employees must receive overtime for all hours worked over 40 in a workweek, unless a specific exemption applies. The agriculture exemption, which existed in Washington for over 60 years, generally allowed employers to avoid paying overtime to workers employed on a farm in connection with farming operations (RCW 49.46.130(2)(g)). As we previously reported, Washington’s Supreme Court decided the agricultural exemption from overtime could no longer be applied to dairy workers in a groundbreaking decision on November 5, 2020 (Martinez-Cuevas v. DeRuyter Bros. Dairy, Inc., Wash, Nov. 2020).
 
To address the uncertainly caused by DeRuyter, Washington’s legislature passed ESSB 5172, which includes the following key details:
 
Three year phase-in of overtime for non-dairy agricultural employees: Until December 31, 2021, non-dairy agricultural employees aren’t entitled to overtime. Starting January 1, 2022, these employees must receive overtime at one-and-one-half times the regular rate for all hours over 55 in a workweek. That threshold drops to 48 hours starting January 1, 2023, and to 40 hours starting January 1, 2024.
 
Special rule for dairy workers: Dairy workers have been entitled to overtime pay after 40 hours in a week since DeRuyter, although any lawsuits filed on or after November 5, 2020, cannot demand overtime pay for work that occurred prior to that date. This provision protects dairy employers from being surprised with three years of retroactive overtime while they were operating under the law as it existed before the DeRuyter decision. (Note: this limitation doesn’t apply to the dairy workers who were plaintiffs in the DeRuyter case; they can still be awarded backpay for up to three years of unpaid overtime hours, if a Washington court decides to do so.)
 
Definition of agricultural employee: Helpfully, the new law adopts the same definition of agricultural employee that has existed for over 60 years, except that dairy workers are now explicitly excluded because of DeRuyter. This means all employers who have reviewed the current definition and appropriately applied it to their non-dairy agricultural workers can continue relying on it.
 
Definition of dairy employee: “Dairy employee” is defined broadly and includes any employee engaged in dairy cattle and milk production as described in the North American industry classification system code 112120.
 
Safe harbor: Any lawsuits filed on or after November 5, 2020, the day of the DeRuyter decision, are blocked if those lawsuits are seeking overtime pay for agricultural or dairy employees’ work prior to that date. For work performed on or after November 5, 2020, by non-dairy agricultural employees, overtime lawsuits are similarly blocked until overtime rights are granted by the new law starting January 1, 2022. On the other hand, lawsuits to enforce the overtime rights created for dairy employees on November 5, 2020, are permitted to continue.
 
Tips: The elimination of the agricultural exemption for overtime comes as a blow to agricultural employers, but one bright spot is the safe harbor provision. The law doesn’t change the definition of agricultural employee beyond carving out dairy workers, so if you’re properly using that exemption for employees, you can continue to do so over the next three years, provided you comply with the phased implementation of overtime. If you have any questions, please connect with your Vigilant Law Group employment attorney.
 
 
WASHINGTON: 4th set of COVID-19 worker housing rules issued
On May 9, 2021, Washington’s Departments of Labor & Industries (L&I) and Health (DOH) again extended and modified existing COVID-19 (coronavirus) safety rules for temporary worker housing (TWH) in the agriculture industry. As a reminder, the larger framework for agricultural COVID-19 safety compliance in Washington continues to be Proclamation 20-57.1 and the implementing requirements for worksites, which we reported on here. Many of the TWH rules in this fourth round mirror the original rules and subsequent modifications that took place in September and January, but new items include:
 
Effective date and expiration date: The new rules took effect May 9, 2021, and are set to expire on September 4, 2021.
 
Fully vaccinated group shelters: A new section in the rules addresses group shelters where all occupants are fully vaccinated. In order to be considered a fully vaccinated group shelter, occupants must be two weeks beyond receiving all doses of their vaccine regimen, and proof of vaccination status must be determined by the housing operator via a vaccination card, photo of the card, or some other health care provider record or state immunization record. In addition to verifying vaccination status, the operator must be able to provide proof of this status when requested by L&I, and maintain a list of all occupants assigned to these fully vaccinated shelters, the dates they were assigned there, and the dates their vaccination statuses were verified. These fully vaccinated groups can share common areas and transportation with other fully vaccinated groups, but physical distancing, masks, and any other mandated personal protective equipment (PPE) must still be used.
 
Close contacts of suspected or confirmed cases: Those who have close contact with suspected or confirmed COVID-19 cases must now be quarantined, unless the exposed individuals have been fully vaccinated. Those who must be quarantined can do so with members of their group shelter. They may leave quarantine when the Centers for Disease Control (CDC) or local health department’s expectations are satisfied, but anyone who develops symptoms or tests positive during the quarantine period must be moved to isolation.
 
Updated isolation requirements: Individuals with suspected or confirmed COVID-19 must continue to be isolated. Those in isolation must receive a daily in-person well-being check by the employer or housing operator, and a daily assessment (down from twice-daily) by a licensed health care professional at the employer’s expense. The housing operator must inform the health care professional of the locations of the nearest advanced life support emergency medical services, emergency room with a ventilator, and outpatient nonemergency medical facility. The health care professional must evaluate the occupant’s symptoms, temperature, oxygen saturation, and any need for additional medical services during the daily assessment, and must obtain the occupant’s medical history if not already familiar with it. The assessment can be performed via telemedicine as long as the housing operator provides proper equipment and help. This includes a phone with a clear connection plus a pulse oximeter and thermometer approved by the U.S. Food and Drug Administration (FDA). The housing operator must provide instructions in the occupant’s preferred language on how to operate and read the pulse oximeter and thermometer, but if the occupant doesn’t want to operate them, the housing operator must provide assistance. The housing operator must also provide interpretation services for these assessments when the health care professional isn’t fluent in the occupant’s preferred language. The housing operator must now also facilitate transportation for any in-person medical evaluation or treatment requested by the occupant or recommended by the health care professional.
 
Suspected COVD-19 cases definedHousing operators have already been required to screen and isolate confirmed or suspected COVID-19 cases, but the new rules now include a definition of suspected cases – individuals with signs and symptoms of COVID-19 who have yet to be tested or refuse to be tested.
 
Community health and outreach workers definedHousing operators must continue to allow community health and outreach workers to access occupants in TWH to provide education on COVID-19. The new rules define a community health worker as a frontline public health worker who has a close understanding of the community and/or who is a trusted member of the community being served. A community-based outreach worker is defined as a legal aid representative, union representative, or another community-based advocacy organization representative.
 
Tips: The hope of a fully vaccinated group shelter might be within reach for your organization, but L&I still requires masks and physical distancing for these individuals, in addition to recordkeeping and documentation of the vaccination. The only real modification or benefit of fully vaccinated groups to a housing operator is that they don’t have to quarantine when there’s been close contact exposure. Most of the other items in the rules either build on the existing requirements or provide clarification in the form of definitions. For questions around compliance with these requirements, be sure to connect with your Vigilant safety professional. Any future extensions or modifications of the TWH rules will be posted on L&I’s rulemaking webpage for Temporary Worker Housing and we’ll report on them in our newsletter.
 
 
WASHINGTON: Governor signs three family and medical leave bills
Governor Jay Inslee recently signed three bills related to family and medical leave in Washington.
 
ESSB 5097 expands the definition of “family member” for purposes of the state’s Paid Family and Medical Leave (PFML) program. The new definition of “family member” includes any person who regularly resides in the employee’s home or where the relationship creates an expectation that the employee will care for the person, and that person depends on the employee for care. The expanded definition doesn’t include a person who simply resides in the same home as the employee with no expectation that the employee will provide care. This change takes effect July 24, 2021.
 
HB 1073 creates a pandemic leave assistance grant for workers who would otherwise qualify for PFML but can’t meet the hours-worked threshold of 820 hours because of changes in their employment related to COVID-19 (coronavirus). Pandemic leave assistance grants for employers are also available to small businesses to cover their costs related to an employee who is receiving a pandemic leave assistance employee grant. Employee grants are available starting on August 1, 2021, for claims with an effective start date of January 1, 2021, through March 31, 2022, as long as the employee isn’t receiving any other unemployment compensation, workers’ comp time loss payments, or disability insurance for the same time period. This bill was signed by Governor Inslee on April 21, 2021, and took effect immediately.
 
HB 1087 was also effective on April 21, 2021. It simply provides clarification that any rights or benefits an employee had under the former Washington Family Leave Act (WFLA) weren’t extinguished when the WFLA was replaced by the Washington PFML program. The WFLA expired December 31, 2019, but any legal obligations or liabilities arising by that date are still actionable. Employees have no new rights or benefits under the WFLA after December 31, 2019.
 
Tips: Be sure to update your Washington paid family and medical leave policy with the new definition of “family member.” Vigilant’s Model Policy, Washington Paid Family and Medical Leave Policy and Federal, Oregon and Washington Leave Comparison Chart have been updated to reflect these changes. Contact your Vigilant Law Group employment attorney with any questions.

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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