A Summary of L&I’s Requirements and Guidance for Employers as Washington Reopens

On June 30, 2021, Washington State officially reopened, thanks to the progress made in combating the COVID-19 pandemic in the state.  By “reopen” we mean the return of industry sectors to normal capacity and operation under Governor Jay Inslee’s Washington Ready plan.

The Washington State Department of Labor & Industries published new requirements and guidance for employers, outlining what employers must now do to continue to protect employees from COVID-19, now that the state has reopened.

Below is a summary of the new rules and guidance for Washington employers:

  • Employers must continue to Assess Recognized Hazards, including COVID-19

Under the new L&I guidance, employers are required to “assess recognized hazards, including COVID-19.” Employers, as always, are required to provide a safe workplace.  In addition to making the workplace safe for all employees, L&I expects that employers will “take additional steps to protect unvaccinated employees” from COVID-19 infection.  Some of these “additional steps” are discussed below. 

  • Mask Use

Employers can now allow fully vaccinated employees to not wear masks, if the following conditions are met: First, employers must verify employees’ vaccination status with the following types of documentation: (1) the employee’s vaccine card or photo thereof; (2) documentation from a health care provider; (3) state immunization information system record; or (4) hard copy or e-signed self-attestation form.  Employers should ensure that whatever system they elect to use to document employee vaccine status is applied consistently to all employees.  Second, employers must be prepared to show and demonstrate the process used to assess and track employee vaccination status.

For unvaccinated employees, it is simple:  They must continue to wear a mask while working indoors.  Employers must continue to make masks with the required level of protection available, free of charge to employees, when mask use is required.

Employers can also elect to continue to require mask use for all employees regardless of vaccine status.

Finally, masks are still required for all workers in the following industries: health care, public transportation, K-12 schools, childcare facilities and day camps in locations where children are present or expected to be present, correctional facilities, and homeless shelters.

  • Social Distancing

Under the Washington Ready Plan, all facilities in the state are fully reopened.  This includes normal indoor business capacity.  This means there are no more distancing requirements, even for the unvaccinated.  The L&I employer guidance does list some “advisory” guidance regarding distancing, recommending that employers “continue distancing between unvaccinated employees, especially in indoor areas with poor ventilation or while working with the public.”  This is an advisory recommendation, intended to help employers maintain a safe and healthy workplace.

  • Hand Washing

Employers must continue to provide hand washing / sanitizing tools in the workplace.

  • Possible or Confirmed Cases of COVID-19

If the employer knows that an employee has been or may have been exposed to COVID-19, the employee must not work around others.  Employees must be notified in writing within 1 business day if the employer learns they have been exposed to a person who tested positive for COVID-19.

  • Workplace Outbreaks

In the event of a workplace outbreak (10 or more employees test positive at a worksite of 50+ people), this information must be reported to L&I within 24 hours.

  • Protecting High Risk Workers

On June 21, 2021, Governor Inslee announced that Proclamation 20-46, High-Risk Employees – Workers’ Rights, was being replaced with the Health Emergency Labor Standards Act (HELSA) under Substitute Senate Bill (ESSB) 5115, effective June 28, 2021.

HELSA provides protections for high-risk workers similar to those under Proclamation 20-46.  Under HELSA, workers cannot be discharged, permanently replaced, or discriminated against in the workplace for seeking accommodation to protect from exposure to an infectious or contagious disease during a declared public health emergency.  The law is only applicable during a declared public health emergency involving an infectious or contagious disease.  The COVID-19 public health emergency remains ongoing, and so the HELSA protections are presently in place.

L&I has published a Q&A guidance document regarding HELSA

  • Complying with Washington’s Safe Worker Proclamation.

On May 21, 2021, Governor Inslee issued Proclamation 21-08 – Safe Workers. This Proclamation contains a number of COVID-19-related protections for workers. 

Under the Proclamation, employers are prohibited from taking any retaliatory or adverse employment action against an employee engaged in any of the following: (1) receiving a COVID-19 vaccination; (2) taking reasonable time off, whether paid, unpaid, or otherwise available in the employment arrangement to receive a COVID-19 vaccine or recover from any side effects; or (3) taking time off, whether paid, unpaid, or otherwise available in the employment arrangement because the employee (a) is subject to a federal, state, or local quarantine or isolation order relating to COVID-19; (b) has been advised by a health care provider to self-quarantine or self-isolate due to concerns related to a positive diagnosis of COVID-19; or (c) is experiencing COVID-19 symptoms and is seeking a medical diagnosis or treatment.

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