Governor Jay Inslee issued Proclamation 20-46.2 (pdf) July 29, 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.
The employer must offer high-risk employees alternative work assignments, including telework, alternative, or remote work locations, if feasible, and social distancing measures:
- If an alternative work assignment is not feasible, or the employee declines, the employer must allow the employee to use any accrued leave or seek unemployment benefits;
- The employer must maintain the employee’s health insurance benefits;
- The employer is prohibited from permanently replacing high-risk employees.
This proclamation is effective April 13 and will remain in effect through the duration of the state of emergency, or until otherwise rescinded or amended. The guidance memo (issued July 29) confirms that employees who are 65 and older continue to be covered by the proclamation and clarifies processes for employers of individuals with certain medical conditions.
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.
Frequently asked questions
Below are some questions and answers related to the Proclamation.
Are healthcare employees, first responders or other essential personnel excluded from the Proclamation?
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?
No. This Proclamation explicitly states that employees “must have access to accommodations to prevent greater risk of contracting COVID-19, and these decisions cannot be left solely to the employer.”
I have offered telework to a high-risk employee, where they will not have to come in to any worksite at any time, 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; however, we are encouraging that employers be flexible with employees at this time. Also, because this proclamation gives discretion to employees about how best to remain safe, if you are considering denying leave to a high-risk individual who is requesting leave based on the Proclamation, it is advised to check with State HR and your AAG.
What type of leave can employees use for this purpose?
Employees can use any accrued leave, including vacation, sick, compensatory time, exchange time, personal holiday, or can also utilize federal Emergency Paid Sick Leave (EPSL). Aside from accrued leave, leave with pay is not authorized for this purpose.
In what order can employees use leave?
Employees can use their leave in any sequence at the discretion of the employee.
Can I require an employee to exhaust accrued leave prior to filing for unemployment if they are unable to work due to their status as a high-risk employee?
No, employees can file for unemployment benefits even if they have not exhausted available leave.
If I am not laying off my employee, how can they seek unemployment benefits? What documentation should I be providing them?
ESD has passed an emergency rule allowing an employee to file for benefits due to lack of work when they are unable to work due to being a member of a high-risk group as defined by the CDC. If an employee is seeking to use unemployment benefits rather than using leave due to lack of an alternative work arrangement, the employer should provide documentation to ESD that there is a lack of work.
Can I back-fill for my high-risk employees who are on leave or not able to perform their jobs on site?
Yes, you can hire temporary/non-permanent employees, as long as they do not permanently replace the high-risk employee.