On May 21, 2021, Governor Jay Inslee and the Washington Department of Labor and Industries (L&I) announced new workplace mask options in line with the Centers for Disease Control (CDC)’s May 13, 2021, guidance, which said people who are fully vaccinated against COVID-19 (coronavirus) generally don’t need to wear masks or physically distance, with a few exceptions. We issued an Alert on the CDC’s announcement as it applied within Vigilant’s member service area, but at that time we didn’t have any workplace guidance from the state of Washington. The Washington Secretary of Health had reacted to the CDC’s announcement with a revised face covering order (20-03.2) for the general public on May 15, 2021, but was silent on mask requirements in the workplace. Now thanks to the governor’s office and L&I, Washington employers have specific guidance to help decide whether to exempt fully vaccinated workers from general rules on masks and physical distancing.
This article highlights the key information for employers from the governor’s updated proclamation, Healthy Washington – Roadmap to Recovery (Proclamation 20-25.13), the governor’s Updated COVID-19 Facial Covering Guidance for Employers and Businesses (May 20, 2021), the Washington Department of Health’s Cloth Face Coverings Guidance During COVID-19 (May 18, 2021), L&I’s Mask and Distancing Requirements Are Changing (May 21, 2021), L&I’s Department of Occupational Safety and Health (DOSH) Directive 1.70 “General Coronavirus Prevention Under Stay Safe - Stay Healthy Order” (May 21, 2021) and DOSH Directive 11.80 “Temporary Enforcement Guidance: Annual Fit-Testing, Respiratory Protection and Face Coverings during COVID-19 Pandemic” (May 21, 2021). Here are the key changes to be aware of:
General rule: You have the option, but aren’t required, to make exceptions to your general rules on masks and physical distancing for fully vaccinated workers, customers, vendors, and others on your property. State law no longer requires fully vaccinated individuals to wear face coverings while indoors or outdoors except in CDC exempted locations (health care settings, correctional facilities, homeless shelters, schools, and public transportation). Local authorities and landlords are prohibited from interfering with businesses’ rights under state law to continue to impose face covering requirements or to begin requiring proof of vaccination from customers who want to un-mask. “Fully vaccinated” means at least two weeks have passed since the final dose, which would be the second dose of Pfizer’s and Moderna’s vaccines and the single dose of Johnson & Johnson’s vaccine. DOSH Directive 1.70 adds that workers who have been vaccinated outside the U.S. with a vaccine that has received World Health Organization (WHO) Emergency Use Listing are considered fully vaccinated if they have taken all required doses and the appropriate amount of time has passed for people to be fully protected according to the manufacturer’s guidance.
Checking customers’ vaccination status: Businesses may choose to implement an “honor system” and assume that a customer who isn’t wearing a face covering is fully vaccinated. However, a business may also choose to engage with customers to determine if they’re fully vaccinated or are otherwise exempt from the face covering requirement and may also ask customers for proof of vaccination. Businesses may also continue to require all customers to wear face coverings even when fully vaccinated. Whatever option you choose, post clear signs so your customers know what to expect. The state offers a Business Signage Toolkit and says new resources will be posted there as they’re developed.
Checking employees’ vaccination status: You may allow fully vaccinated employees to work without wearing a face covering after they have either provided proof of vaccination or a signed self-attestation, submitted either in hard copy or electronically, verifying their fully vaccinated status. You may choose the form of proof you will require, but L&I says any of the following are acceptable: a CDC vaccination card, a photo of the CDC card, documentation from a health care provider or state immunization information system record, or a hard copy or electronically signed attestation from the worker. L&I may ask you to provide evidence of your process to verify the vaccination status for workers who aren’t masked or physically distanced. You don’t have to retain actual copies of the vaccination records, though. You’re free to establish any reasonable verification system; L&I offers these ideas:
- Creating a log of workers who have verified they’ve been vaccinated and the date of verification;
- Checking vaccination status each day as workers enter a jobsite; or
- Marking a worker’s badge or credential to show that they’re vaccinated. (One option we reported in our May 20, 2021, newsletter is the National Association of Manufacturers (NAM)’s Yellow and Red Ribbon Initiative.)
If you create a log, it might be helpful to include space to indicate what type of vaccination document you reviewed.
Temporary worker housing rules: The governor’s proclamation says, “existing guidelines that require proof of vaccination for certain settings and activities remain in effect until such time as those guidelines are expressly modified.” We understand this to mean that the revised temporary worker housing (TWH) rules from L&I, which took effect on May 9, 2021, continue to apply. We reported on those rules here. Washington’s regulations on temporary worker housing state that if a housing operator establishes fully vaccinated group shelters, L&I may request copies of the “vaccination records.” In contrast to the new general workplace guidance from L&I, the TWH rules seem to imply that the records would consist of copies of the actual documents. The TWH rules also don’t allow occupants to self-certify their vaccination status. Unless L&I updates the TWH rules to bring them in line with the general workplace guidance described above, the safest approach is to obtain copies of the actual vaccination records and to reject self-attestations as proof of vaccination.
Compliance with other guidelines: All mandatory guidelines for businesses and activities, which remain in effect except as modified by the governor’s proclamation and L&I’s new guidance, can be found at the web pages for Washington State Coronavirus Response (COVID-19) and COVID-19 Reopening Guidance for Businesses and Workers.
Special rules in Seattle & King County: On May 20, 2021, the Department of Public Health for Seattle and King County issued a directive addressing the new CDC guidance for fully vaccinated individuals. The directive is voluntary for individuals and businesses to follow and applies only to indoor spaces, but states that everyone five years of age and older in King County “should continue to wear a face covering within indoor public spaces, unless a state-approved method is used to assure that all people allowed inside have been fully vaccinated.” The directive doesn’t apply to indoor non-public spaces, including businesses, offices, and other places of employment with limited access. It also states employers should continue to follow current guidance and requirements from L&I on worker safety.
New law allowing workers to voluntarily wear PPE: In a related development, on April 26, 2021, Governor Inslee signed SSB 5254, a new law that took effect immediately, granting workers the right to voluntarily wear personal protective equipment (PPE) during a public health emergency declared by the President, the governor, or a local public health agency related to an infectious or contagious disease. The law says that employers who don’t require employees or contractors to wear a specific type of PPE must accommodate its employees’ or contractors’ voluntary use of that specific type of PPE. Examples include gloves, goggles, face shields, and face masks. However, you don’t have to accommodate voluntary use if it would create a workplace hazard, is inconsistent with L&I’s safety rules, interferes with your security requirements, or conflicts with standards for that specific type of PPE established by the Washington Department of Health or L&I. You have the right to verify that voluntary use of PPE meets all regulatory requirements for workplace health and safety.
Separate from this new law, existing safety regulations require that if you allow an employee to voluntarily use a dust mask (filtering facepiece) or tight-fitting facepiece, you must discuss certain information with the employee to ensure the safe use of this type of voluntary respirator. If you allow voluntary use of tight-fitting facepieces, you also must administer an abbreviated respiratory protection program. For more information, see our Model Form, Respirators: Requirements for Voluntary Use, and contact your Vigilant safety professional for guidance.
Tips: If you decide to allow fully vaccinated workers to go mask-free at work, you’ll have a number of practical decisions to make. Please see the Tips in our May 19, 2021, Alert, Understand how CDC’s relaxed mask guidance applies in your state, for guidance on subjects such as your right to ask for vaccination information, workplace enforcement, and mutual respect reminders.
If you operate a manufacturing facility, you should update your Washington COVID-19 Exposure Control Plan, communicate the changes to employees, and post the updated plan. Governor Inslee’s “Manufacturing Facility COVID-19 Requirements” guidance document was last revised on January 11, 2021, and therefore doesn’t (yet) address options for fully vaccinated employees to dispense with masks and physical distancing. Our Model Policy, Washington Manufacturing Facility COVID-19 Exposure Control Plan, has been updated with suggested language.
Keep in mind that you can still choose to require masks for everyone, if you don’t want the hassle of verifying individuals’ vaccination status. Your communication of your masking policy to your employees and those allowed on your property is vital. Be ready to answer questions and address employees’ concerns regarding your masking policy, whether or not you choose to relax your masking requirements. Questions? Contact your Vigilant Law Group employment attorney or Vigilant safety professional.