High-risk worker proclamation

Governor Jay Inslee issued Proclamation 20-46.3 (pdf) April 8, 2021, amending Proclamation 20-05 (pdf), which prevents all employers, public or private, from failing to provide accommodation to high-risk employees, as defined by the Centers for Disease Control and Prevention (CDC), that protects them from risk of exposure to the COVID-19 disease on the job.

Proclamation 20-46.3 will continue to maintain the core principles of the original proclamation:  

  • Workers who remain high risk will still benefit from job protection, access to alternative work arrangements, and eligibility for unemployment insurance and other forms of paid leave.
  • Employers must provide employees with 14 days’ notice of any planned changes, which will give employees time to work with their medical provider to obtain verification and to seek health coverage through their employer’s COBRA plan, the Health Benefit Exchange, or private insurers.

This proclamation is effective April 13, 2020, and will remain in effect through the duration of the state of emergency, or until otherwise rescinded or amended. The updated proclamation (issued April 8, 2021) allows employers additional flexibility to seek medical verification from employees and to shift employees to health coverage alternatives.

If you are at high-risk, as defined by the CDC and would like to request an accommodation under the Proclamation, please contact your human resources office.

The Governor's Office also released a list of frequently asked questions and answers about the latest version of the proclamation.

Frequently asked questions about employee rights under Washington State Law Against Discrimination (WLAD)

My employer wants me to return to work at the office, however I have tested positive for COVID-19. Could I lose my job if I stay home or telework and do not return to the office as requested?

The state Human Rights Commission has determined that under the Washington State Law Against Discrimination (WLAD), anyone who tested positive for COVID-19 would most likely be considered a person with a disability. In that situation, the employee would need to inform the employer of the disability and request reasonable accommodation of medical leave or telework.  Absent undue hardship (which in these circumstances would be difficult to prove) the employer would need to provide that reasonable accommodation. 

My employer wants me to return to work at the office, however I am over age 65, which puts me at higher risk of if exposed to COVID-19. Could I lose my job if I stay home or telework and do not return to work as requested?

A person over age 60, who is in otherwise good health, would not have reasonable accommodation protections under WLAD. Age by itself does not require reasonable accommodation by an employer. However, there are protections for workers over 60. Proclamation 20-46, regarding High-Risk Employees - Workers’ Rights, was issued by Governor Inslee on April 13, 2020.  Employers are prohibited from failing to 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. 

My employer wants me to return to work at the office, however I have an underlying health condition that puts me at higher risk of if exposed to COVID-19. Could I lose my job if I stay home or telework and do not return to work as requested?

The state Human Rights Commission has determined that under WLAD, anyone who has an underlying health condition would most likely be considered a person with a disability. If someone has an underlying medical condition that puts them at additional risk of contracting COVID-19, that person should inform their employer that they have a disability, and request reasonable accommodation of telecommuting, complete separation in the workplace from other workers, or a leave of absence until the risk is minimized. Again, in light of circumstances, an employer would have a difficult time proving an undue hardship, and would most likely need to grant the employee’s reasonable accommodation request. 

More information is available in this fact sheet from the Department of Labor & Industries: Protecting High-Risk Employees from Discrimination During Public Health Emergencies (PDF).

As an additional protection for an employee with an underlying health condition, Proclamation 20-46, regarding High-Risk Employees - Workers’ Rights, was issued by Governor Inslee on April 13, 2020.  Employers are prohibited from failing to 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.

 

Are healthcare employees, first responders or other essential personnel excluded from high-risk employee protections?

No, there are no exclusions. If an employee is at high-risk, as defined by the CDC, the employer is required to accommodate them.

Can I require documentation from the employee to verify that they are high-risk? If so, what can I require?

If an employee is requesting accommodation due to being in a high-risk group, and they provide sufficient facts to support the request, the employer must provide the accommodation.

I have some employees whom I believe fit one or more of the high risk categories. Should I reach out to them directly to ask if they would like accommodation?

Because of the risk of potential “regarded as disability” discrimination and age discrimination claims, it is recommended to communicate to all employees about the proclamation rather than to reach out directly to specific employees who have not asked for accommodation. 

I have offered an alternative work location to a high-risk employee where no other employees are present, but they are still saying they do not feel safe coming in to work. Can I deny them telework and/or leave?

State law explicitly states that during a public health emergency, high-risk workers are allowed to seek reasonable accommodation without fear of discharge or discrimination. If there is no reasonable accommodation available, employers must provide the employee all leave options – including leave without pay.

I have offered telework to a high-risk employee, but they are saying they would rather take leave. Must I approve the leave in these circumstances?

In this case, you can follow your agency or institution’s leave policies. If you are considering denying leave to a high-risk individual, you may want to consult your HR office or legal counsel first.