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New laws protecting high-risk employees during public health emergencies

Aug 18, 2021 | Entertainment Reopening Guide, Hotel COVID-19 Operations Guide, Other Guides/Manuals, Restaurant Reopening Guide

The 2021 Legislature enacted new policy changes designed to increase protections for workers during public health emergencies. The changes outlined in this article relate to new employer requirements that are activated when there is a federal- or state-declared public health emergency involving an infectious or contagious disease.

Employers must be mindful of these provisions and take specific actions under certain conditions during a statewide public health emergency. Washington state has been operating under a statewide public health emergency since the start of the coronavirus pandemic, and that declared state of emergency is still in effect today.

Personal protective equipment (PPE)

Voluntary use by employees
SSB 5254 allows employees to voluntarily wear personal protective equipment PPE even if PPE is not required by the employer. The PPE must not conflict with existing state and federal workplace safety regulations and cannot interfere with the employer’s security requirements.

 

Health Emergency Labor Standards Act (HELSA)

High-risk employee accommodations
ESSB 5115, the Health Emergency Labor Standards Act (HELSA), protects high-risk employees from any adverse action such as termination and discrimination for requesting accommodations to reduce exposure to the disease. If reasonable accommodations aren’t feasible, employees are entitled to use all available leave options including leave without pay and unemployment insurance (if eligible).

Who qualifies as a “high-risk” employee
Any employee at an age or who has an underlying health condition that puts them at high risk, as defined by the CDC, and has obtained a recommendation from a health care provider to be removed from the high-risk work environment.

What to do if you and your employee can’t reach agreement on a reasonable accommodation
You can reach out to the Washington State Human Rights Commission at policy@hum.wa.gov for assistance with resolving a reasonable accommodation dispute.

What to do if your workplace has an outbreak
An employer with more than 50 employees at a workplace or worksite must report to the Department of Labor & Industries (L&I) within 24 hours of confirming that 10 or more employees at a workplace have tested positive for the infection or contagious disease.

What is considered an “outbreak” that would trigger the reporting requirement
If you have two positive cases in a 14-day period, continue counting cases until either you hit 10 cases and have to report to L&I or you go 28 consecutive days with no further cases.

What to do if you receive notice of potential exposure to an infectious or contagious disease
The employer must notify all employees and subcontractors who were at the same worksite and may have been exposed. The notification must be in writing and within one business day of receiving the information about the potential exposure.

Employers’ communication must be consistent with previous forms of employee communication. Employers may use email and text messages so long as those messages can be delivered within one business day. Notice must be written in English and the language understood by the majority of the employees.

How do I contact L&I for more information or if I need to report an outbreak?
Information requests can be sent to: EyeOnSafety@lni.wa.gov
Outbreak reports can be submitted by calling: 1-800-423-7233
(L&I: Division of Occupational Safety and Health)
NOTE: DO NOT include any employee names or personal identifying information when submitting a report to DOSH.

Additional information
L&I Q&A: Protecting High-Risk Employees from Discrimination During Public Health Emergencies
L&I rules for ESSB 5115 and SSB 5254
ESSB 5115 – Bill text
ESSB 5115 – Bill report
SSB 5254 – Bill text
SSB 5254 – Bill Report