Washington State Governor Jay Inslee changed the proclamation for High Risk Employees to make it easier for employers to obtain medical evidence from workers as to whether they are at high risk for COVID-19 and what Accommodations allowing them to return to work could make other changes. Governor Inslee has also released a new FAQ sheet. The proclamation comes into force on April 23, 2021 and cannot be applied retrospectively.
“High Risk Employee”
The amended proclamation continues to use the CDC (Centers for Disease Control and Prevention) definition of a “high risk worker” for COVID-19.
The High Risk Employee Proclamation continues to protect “older” employees (there is no specific age threshold) and employees with the following conditions listed by the CDC: cancer; chronic kidney disease; chronic lung diseases; Dementia or other neurological diseases; Diabetes (type 1 or type 2); Down syndrom; Heart disease (such as heart failure, coronary artery disease, cardiomyopathy, or high blood pressure); HIV infection; immunocompromised condition (weakened immune system); Liver disease; Being overweight or obese (collectively defined as a body mass index of 25 or higher); Pregnancy; Sickle cell disease or thalassemia; current or previous smoking; Solid organ or blood stem cell transplantation; Stroke or cerebrovascular disease; or substance use disorders.
Medical review
The change relaxes and expands the requirements for the employer review.
In the previous version, employers could only request screening of certain medical conditions. Under the change, employers can request an employee’s medical service provider to review the conditions listed above. The medical examination must include a determination or a medical opinion as to whether the worker is at high risk and whether the worker may be able to return to work with additional accommodation, taking into account the health status, vaccination status and vaccination status of the worker special circumstances of your workplace or workplace must be taken into account. To receive a medical review, employers must follow the same interactive process required by state and federal disability laws to ensure workers have a reasonable time to respond.
As before, employers can request a review by a high-risk employee’s medical service provider if the employee wishes to take vacation for which a state or federal law, collective agreement (CBA), or contractual obligation requires separate review (including, but not limited to Washington Paid Sick Leave, Employer-Managed Vacation and Unemployment Insurance Compensation).
Note
Employers must give advance notice before changing the accommodation as part of the change.
When high-risk employees request alternative work arrangements to protect themselves from the risk of exposure to COVID-19 in the workplace, employers must continue to use all available options, including teleworking, alternative or remote workplaces, reallocation and social distancing measures. If alternative work arrangements are not feasible, employers must allow high-risk workers to take advantage of available vacation leave or unemployment. It is the decision of the high risk worker to take out the accrued vacation or unemployment insurance in any order.
Employers may not change the accommodations of a high-risk employee as part of the proclamation without giving the employee 14 calendar days’ written notice listing the changes. Employers can submit this notice from April 9, 2021.
Health insurance
The change means that employers are no longer required to maintain health insurance benefits for high-risk workers indefinitely.
Although the high-risk employee may otherwise be eligible for employer-related health insurance benefits under the Family and Medical Leave Act of 1993 (FMLA), CBA, or other employment-specific terms, employers are no longer required to fully uphold the proclamation of all employer-related health insurance benefits for high-risk employees. Now employers can cancel the health insurance provided by the employer if they give this at least 14 days in advance in writing and continue the insurance until the end of the month in which the 14-day period expires. For example, if an employer gives written notice on April 20, 2021, the 14-day period will expire on May 4, so coverage will continue until May 31, 2021. Upon receipt of this termination, employees may qualify for COBRA coverage or the options available in Washington Healthplanfinder.
Unchanged
The purpose of the proclamation is to continue to protect, as much as possible, high risk employees from loss of position and retaliation for decisions made about whether and how to work for their employer under the proclamation.
Employers can hire temporary workers, provided that this does not affect the right of the “permanent” high-risk worker under the proclamation to return to his / her position without the employer adversely affecting his / her employment status.
Employers may require high-risk employees who do not report to work under the proclamation to notify the employer up to five days in advance of any decision to report to work or return to work under the proclamation.
Employers can take employment action if there is no reasonably existing work for a high risk employee during the proclamation, e.g. However, in the absence of work, employers must not take any action that could adversely affect the eligibility of a high-risk worker to unemployment benefits.
Employers must not reciprocate or engage in negative employment measures that would result in permanent replacement of high-risk employees who are exercising their rights under the Proclamation. Violations are punishable by law (as is the case with all recent governor’s proclamations). The state’s FAQ sheet instructs employees to file a complaint with the Occupational Health and Safety Division of the Washington Department of Labor and Industry if they believe their rights under the proclamation have been violated.
Jackson Lewis PC © 2021National Law Review, Volume XI, Number 103
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