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Amendments to the Washington Paid Family and Medical Leave Act (“WPFMLA”) that went into effect June 11, 2020 include a new private right of action for employees. Under the WPFMLA, employers are prohibited from interfering with, discriminating against, or retaliating against employees exercising their rights under the Act. Previously, any claims of interference, discrimination, or…

At midnight on May 31, Governor Inslee’s “Stay Home – Stay Healthy” order expired, replaced by his “Safe Start – Stay Healthy” order of the same day (“Safe Start Proclamation”).  Under the Safe Start Proclamation, any county may apply to transition to Phase II of the Safe Start Washington plan if it can…

In response to recent developments displaying the difficulties in enforcing Governor Jay Inslee’s “Stay Home Stay Healthy” order (“SHSH”), the state Department of Labor & Industries has acted.  Now a violation of SHSH will be treated as a violation of Washington’s health and safety regulations, and subject employers to the full panoply of fines and other penalties available under the Washington Industrial Safety and Health Act (“WISHA”).  The text of the new rule is available here.  The new rule was adopted on an emergency basis, here without public notice or comment, and is effective immediately.

The SHSH order was issued in late March, and “non-essential” businesses were ordered closed.  As the closures have dragged on, some businesses had re-opened anyway.  The most high-visibility cases were a pair of gyms, a business not deemed “essential” under SHSH.  SHSH had no effective enforcement mechanism, however, and the Washington Attorney General was reduced to threatening litigation under the Consumer Protection Act, on the theory that the open gyms derived an unfair advantage over gyms that were observing SHSH.  See the Attorney General’s letter here.
Continue Reading Be Aware: SHSH Violations Will Be Treated As WISHA Violations

Phased Reopening

As part of his proclamation extending the Stay Home – Stay Healthy Order through May 31, Governor Inslee established a phased approach to reopening the state: Safe Start Washington.

Under the plan, the entire state began in Phase I of four planned phases, with each phase expected to last at least three weeks. The Department of Health and Governor Inslee will periodically reevaluate factors related to health care system readiness, testing capacity and availability, case investigations and contact tracing, and the ability to protect high-risk populations in determining whether Washington should move to the next phase, remain in the current phase, or move back to a more restrictive phase.

Under Phase I:

  • High-risk populations are to remain at home;
  • Some outdoor recreation (hunting, fishing, golf, boating, hiking) is allowed;
  • Social gatherings are not permitted with individuals from different households;
  • Spiritual gatherings may operate as drive-in services with one household per vehicle;
  • Travel is limited to only essential and other “Phase I permissible” activities; and
  • A select few businesses are allowed to be open if they are essential businesses, certain existing construction projects, landscaping, auto/RV/boat/off-road vehicle sales, retail (curb-side pickup only), car washes, and pet walkers.

Smaller counties may request a variance to move to Phase II before the rest of the state if they have fewer than 75,000 residents and have not identified a resident with COVID-19 for the three consecutive weeks immediately prior to requesting the variance.  Currently, Asotin, Columbia, Garfield, Lincoln, Ferry, Pend Oreille, Skamania, Stevens, Wahkiakum, and Whitman Counties have been approved to move to Phase II, while the rest of the state remains in Phase I.
Continue Reading The Status of Washington’s COVID-19 Restrictions: Phased Reopening, Contact Tracing, and Mask Requirements

As restrictions are easing, employers are planning for and starting to bring people back to work.  In these extraordinary times, everyone recognizes that things will not be business as usual.  Here is our “Top 10” checklist of things to consider as we move toward the “new normal.”

  1. Reluctant Returners. Many employees are eager to return

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On April 21, Washington’s Governor Inslee remarked that the eventual reopening of Washington will “look more like turning a dial than flipping a switch.” But the timing of that dial turning is still unknown. Governor Inslee did not comment on whether his Stay Home, Stay Healthy order will be lifted on its current end date…

Many Washington employers are looking for ways to retain skilled labor until businesses reopen.  The Washington Employment Security Department’s (“ESD”) emergency rules may help during the COVID-19 crisis.  Employers who plan to rehire employees when businesses reopen may request “standby” status for laid off employees, which has been expanded under the emergency rules.

Standby status…

For at least the next two months, Washington employers are required to take extra measures to accommodate employees characterized by the Centers for Disease Control and Prevention (CDC) to be at higher than normal risk of severe illness or death if they contract COVID-19.  On April 13, Governor Inslee issued Proclamation 20-46, “High-Risk Employees – Workers’ Rights,” prohibiting all Washington employers, both public and private, from failing to provide accommodations to high-risk workers, defined by the CDC as:

  • Employees age 65 or older
  • Employees with serious underlying health conditions, including:
    • Moderate to severe asthma
    • Heart disease
    • Lung disease
    • Diabetes
    • Chronic kidney disease, undergoing dialysis
    • Liver disease
    • Severe obesity
    • A condition that renders the employee immunocompromised, such as HIV or cancer treatment.

Employees in the above high-risk categories are now afforded additional accommodation rights under the Governor’s Proclamation.  Between now and June 12 (subject to extension by the Governor), you must take the following steps if you are a Washington employer:…
Continue Reading Washington Governor Mandates That Employers Accommodate Employees at High Risk of Contracting COVID-19