Be Aware: SHSH Violations Will Be Treated As WISHA Violations

In response to recent developments displaying the difficulties in enforcing Governor Jay Inslee’s “Stay Home Stay Healthy” order (“SHSH”), the state Department of Labor & Industries has acted. Now a violation of SHSH will be treated as a violation of Washington’s health and safety regulations, and subject employers to the full panoply of fines and other penalties available under the Washington Industrial Safety and Health Act (“WISHA”). The text of the new rule is available here. The new rule was adopted on an emergency basis,  without public notice or comment, and is effective immediately.

The SHSH order was issued in late March, and “non-essential” businesses were ordered closed. As the closures have dragged on, some businesses had re-opened anyway. The most high-visibility cases were a pair of gyms, a business not deemed “essential” under SHSH. SHSH had no effective enforcement mechanism, however, and the Washington Attorney General was reduced to threatening litigation under the Consumer Protection Act, on the theory that the open gyms derived an unfair advantage over gyms that were observing SHSH. See the Attorney General’s letter.

Under the new rule, the State has more tools at its disposal. Now, employers are prohibited from allowing employees to perform work which is prohibited by an emergency proclamation such as SHSH. The new rule makes this requirement part of WISHA’s “core rules,” applicable to most businesses. While the specific amount of a WISHA fine would depend on a case-by-case determination, fines of thousands of dollars are routine. Moreover, if the agency concludes that a violation is “willful,” those fines can be dramatically increased.

The new rule also notes that the failure to comply with the state’s “Safe Start” phased reopening plan could also be a violation. See our discussion of Washington’s phased re-opening.

The risks of operating in potential violation of SHSH, or any of the other recent emergency proclamations, have just been substantially increased in the state of Washington. If you have any questions regarding the emergency rule or related matters, please contact one of the lawyers listed in this alert.