Changes to Washington’s Requirements Regarding Accommodation of Employees at High Risk of Contracting COVID-19

For the past year, Washington employers have been required to accommodate those employees characterized by the CDC as being at high risk of severe illness or death from COVID-19.  Required accommodations can include allowing those employees to take extended leaves of absence if alternative work assignments, telework, remote work locations, or social distancing measures are not possible.  See here for our previous discussion of the details of Governor Inslee’s “High-Risk Employees – Workers’ Rights” Proclamation.  While the accommodation obligation continues, the Governor’s latest iteration of his Proclamation allows employers a little more flexibility.

Previously, employers could not require high-risk employees to provide medical verification of their conditions except in narrow circumstances.  That is no longer the case.  Employers may now require that any employee seeking a high-risk accommodation provide certification from a medical provider that he or she is at high risk from COVID-19 and that the accommodation sought is necessary.  The medical provider must take into account the employee’s condition, the particular circumstances of the employee’s position and workplace, and – significantly -- the employee’s COVID-19 vaccination status.  Employers who have been accommodating high-risk employees for the last year may now ask them to provide verification of the need for continued accommodation, which may no longer exist for those employees who have been fully vaccinated.  Employers must provide such employees with 14 days’ advance notice of any change to their accommodations.

In addition, employers were previously required to continue high-risk employees’ health insurance benefits while they were out on leave.  That, too, is no longer required.  Employers must provide such employees with at least 14 days’ notice of discontinuation of benefits, but then may cancel their benefits if they are not otherwise required to provide benefits continuation  under the FMLA or other law.