Washington Governor Mandates That Employers Accommodate Employees at High Risk of Contracting COVID-19

For at least the next two months, Washington employers are required to take extra measures to accommodate employees characterized by the Centers for Disease Control and Prevention (CDC) to be at higher than normal risk of severe illness or death if they contract COVID-19.  On April 13, Governor Inslee issued Proclamation 20-46, “High-Risk Employees – Workers’ Rights,” prohibiting all Washington employers, both public and private, from failing to provide accommodations to high-risk workers, defined by the CDC as:

• Employees age 65 or older
• Employees with serious underlying health conditions, including:
  • Moderate to severe asthma
  • Heart disease
  • Lung disease
  • Diabetes
  • Chronic kidney disease, undergoing dialysis
  • Liver disease
  • Severe obesity
  • A condition that renders the employee immunocompromised, such as HIV or cancer treatment.

Employees in the above high-risk categories are now afforded additional accommodation rights under the Governor’s Proclamation.  Between now and June 12 (subject to extension by the Governor), you must take the following steps if you are a Washington employer:

• If a high-risk employee requests to be protected against exposure to COVID-19, you must utilize all available options for alternative work assignments, such as telework, remote work locations, reassignment, and social distancing measures.

• If you determine that a reasonable accommodation of the high-risk employee through alternative work arrangements is not possible, you must permit the employee to take leave if he or she chooses to do so. The employee must be provided the discretion to file for unemployment benefits or to use any accrued company-provided leave (such as sick leave, vacation, or PTO) in any order the employee chooses.

• If the high-risk employee takes a leave of absence and exhausts all of his or her accrued paid time off, you must continue to fully maintain all provided health insurance benefits until the employee can return to work. (You should check with your health insurance plan to ensure that the plan will allow continuation of benefits for an employee on unpaid leave, as that is not always permitted, creating a conundrum for those attempting to comply with the Governor’s mandate).

• Finally, you may not permanently replace any high-risk employee who exercises his or her rights to an alternative work assignment and/or to take leave. (You may, however, still hire temporary employees so long as it does not negatively impact the high-risk employee’s right to eventually return to work.  In addition, you still may take employment actions, such as a reduction in force, when no work reasonably exists).

Significantly, the above measures are triggered only if the high-risk employee requests such an accommodation.  There is no obligation to affirmatively provide accommodations if the employee has not initiated the process.  But the Proclamation also implies that you cannot force a high-risk employee to accept an accommodation such as a reassignment or leave if the employee has not requested an accommodation; the discretion lies with the employee.

While the Proclamation does not provide for any civil claims against employers, an employer who violates the Proclamation may be subject to criminal penalties under the statute that authorizes the Governor to issue emergency proclamations.