New Protections for High-Risk Employees

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Yesterday, Governor Inslee issued his newest COVID-19 related order – Proclamation 20-46: High Risk Employees – Workers’ Rights – protecting high risk employees (defined as older adults and people of any age who have certain chronic underlying health conditions) by requiring the following of all public and private employers in Washington State:

  • Utilize all available options for alternative work assignments to protect high-risk employees, if requested, from exposure to the COVID-19 disease, including but not limited to telework, alternative or remote work locations, reassignment, and social distancing measures; and
  • Permit any high-risk employee in a situation where an alternative work arrangement is not feasible to use any available employer granted accrued leave or unemployment insurance in any sequence at the discretion of the employee; and
  • In the event the employee’s paid time off exhausts during the period of leave, fully maintain all employer-related health insurance benefits until the employee is deemed eligible to return to work; and
  • Refrain from taking adverse employment action against an employee for exercising these rights that would result in loss of the employee’s current employment position by permanent replacement.

This order temporarily supersedes any employment contract provision that contradicts or interferes with these workers’ rights.  The takeaways for employers are:

  • If a high-risk employee requests an alternative work assignment, consider and exhaust all available alternatives before requiring the employee to either use leave or apply for unemployment benefits;
  • If an alternative work assignment is not feasible, the employee gets to decide whether to use accrued leave before applying for unemployment benefits, or to instead apply for unemployment benefits and save their accrued leave for later;
  • If the employee exhausts their paid time off, fully maintain all employer-related health benefits until the employee is deemed eligible to return to work. This includes continuing to pay the employer-side of the premium, even if the employee is out on unpaid leave;
  • There is job protection for any employee who exercises their rights under this order (although the order explicitly permits an employer to take employment action when no work reasonable exists); and
  • Employers can require employees who do not report to work under this order to give up to 5 days’ notice of any decision to return to work.

The order is effective until 11:59 PM on June 12, 2020, unless extended beyond that date.

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