Employees May Now Bring Direct Claims Against Employers for Alleged Violations of the WA Paid Family and Medical Leave Act

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 retaliation could only be brought through the Washington Employment Security Department (“ESD”), which would conduct an administrative investigation and adjudication. While an employee may still choose to raise his or her claims with ESD, the newly-amended WPFMLA now allows employees to instead choose to bring direct claims against employers by filing suit in court. Class actions are also expressly allowed by the Act.

What does this mean for Washington employers? With ESD currently overwhelmed by unemployment claims, it is reasonable to expect that most WPFMLA claims will now be raised directly by employees in the courts. And with more options for pursuing WPFMLA claims – and many employees taking COVID-related leave – we could soon see an increase in litigation in this area. It is now more important than ever to ensure that you are complying with the WPFMLA. See here for more details about employers’ obligations under the Act.

Supreme Court Rules That Title VII Protects LGBT Employees

Today the United States Supreme Court answered the question of whether Title VII, the federal law that prohibits workplace discrimination “on the basis of sex,” protects LGBT employees with a resounding “Yes.”  In a 6-3 decision, the Court held that: “The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

In October 2019, the Court heard oral argument in a trio of cases that presented this issue and had split lower courts.  In one case, a male child welfare advocate participated in a gay recreational softball league.  After a prominent community member complained, the advocate was fired.  In another case, a skydiving instructor told a customer with whom he was tandem diving that he was gay (in an attempt to put the female customer’s boyfriend at ease), and was terminated days later.  In the final case, an employee who got a job at a funeral home while presenting as male was later diagnosed with gender dysphoria; after she wrote to her employer that she planned to begin living and working “full-time as a woman,” she was fired. Continue Reading

Washington Governor Extends Proclamation Requiring Accommodation of High-Risk Employees

Governor Inslee has extended – until at least August 1, 2020 – his proclamation prohibiting all Washington employers from failing to provide accommodations to workers at high risk should they contract COVID-19.  See here for our discussion of the details of the accommodation requirements and here for the Governor’s extension order.

Oregon Employers in Counties Entering Phase II May Begin Limited Return to Office Work; Remote Work Is Still Recommended

Governor Brown’s latest Executive Order, 20-27, issued June 5, 2020 provides comprehensive guidance for Oregon employers as the majority of the state enters Phase II of Oregon’s reopening plan.  In addition to outlining the sector-specific requirements for Phase II, which we recently blogged about here, the Executive Order provides further instructions regarding office work.

Under Oregon’s Stay at Home Order and the Baseline Phase and Phase I of Oregon’s reopening plan, work in offices was prohibited when telework and work from home options were available, in light of position duties, availability of teleworking equipment, and network adequacy.  When telework and work from home options were not available, employers were required to designate someone to establish, implement, and enforce physical distancing policies.  Multnomah County, Oregon’s most populous county, which includes the City of Portland, remains at the Baseline Phase.

Executive Order 20-27 provides that for Oregon counties entering Phase II, employers may begin limited return to office work.  Remote working remains recommended to the extent practical.  If employers choose to have employees return to the office, some of the most important threshold steps are to develop and train on social distancing policies and requirements.  Employers must designate (or continue to designate) an employee(s) who is best suited to ensure that physical distancing policies are understood and followed by employees returning to the workplace.  It is prudent to think carefully about your employee-designees.  It is also beneficial to maintain open and transparent lines of communication with employees so that they are prepared to return and fully understand expectations and requirements before returning to the office.

The Executive Order also sets expectations regarding Phase III of Oregon’s reopening.  Transitions into Phase III are unlikely until widely available and effective therapeutics or a vaccine becomes available, or other significant changes in the threat from the pandemic emerge.

We will continue to track Oregon’s phased reopening and the impact on Oregon employers.  Additional information about the general legal and business implications of the COVID-19 pandemic is available on our COVID-19 Resource Hub.  For guidance specific to the challenges facing your business, please contact us.

Oregon Issues New COVID-19 Guidance for Employers as Most Counties Enter Phase 2

We continue to track Governor Brown’s plans for Oregon’s phased reopening, and the impact on Oregon employers.  Select Oregon counties have been approved to move into Phase 2 effective June 5, 2020, with the majority of Oregon counties moving into Phase 2 by June 8.  Multnomah County, Oregon’s most populous county, remains at Baseline, but hopes to enter Phase 1 starting June 12.

Phase 2 of Oregon’s reopening plan generally allows gatherings of up to 50 people indoors and 100 people outdoors, and encourages individuals to gather outdoors when possible.  The onus is on the operators of gatherings to determine maximum occupancy of each indoor and outdoor area and maintain at least six feet physical distance between parties, and adhere to various cleaning and sanitation requirements, which are available here.  Phase 2 also has sector-specific requirements for indoor & outdoor entertainment facilities, restaurants & bars, swimming pools & sports courts, recreational sports, and venues & events that are set forth in detail below.  Given the many moving parts and that requirements differ by sector, it is prudent for employers to ensure their employees have been provided with proper written policies, protocols, training, and necessary PPE before reopening their doors to the public. Continue Reading

Ninth Circuit Holds Class Claims Moot When Class Representative Settles Individual Claims Without Retaining a Financial Stake in the Outcome of Class Claims

On Wednesday, June 3, the Ninth Circuit Court of Appeals held in Brady v. Autozone, No. 19-35122, slip op. at 1 (9th Cir. June 3, 2020), https://cdn.ca9.uscourts.gov/datastore/opinions/2020/06/03/19-35122.pdf, that class claims become moot when “a class representative voluntarily settles only his individual claims without indicating any financial stake in the unresolved class claims.”

Michael Brady filed a putative class action complaint against AutoZone Stores, Inc., and Autozoners LLC, alleging violations of Washington’s minimum wage and meal break laws.  After the district court denied Brady’s motion for class certification and declined to modify its ruling, Brady settled his individual claims against AutoZone.  The settlement agreement did not “settle or resolve Brady’s Class Claims” but “did not provide that Brady would be entitled to any financial reward if the unresolved class claims were ultimately successful.”  The district court entered a final judgment and Brady appealed the class certification rulings. Continue Reading

Washington’s Safe Start Proclamation for Phased Reopening Includes a Mandate That Employees Wear Cloth Face Coverings

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 demonstrate that it meets certain metrics regarding COVID-19 activity, healthcare system readiness, testing, contact tracing, and protection of high-risk populations.  See here for our more detailed discussion of Phase II.  Counties that do not meet the requirements for moving to Phase II may nevertheless apply for a modified Phase I allowing for some Phase II activities to take place.  There are currently 27 counties that have been approved to move to Phase II, while 12 counties remain in Phase I.  King County, one of the counties still in Phase I, intends to apply for a modified Phase I that would allow some limited Phase II activities such as outdoor restaurant dining at 50% capacity, outdoor gatherings of five or fewer people not within the same household, and in-store retail operations at 15% of building occupancy and with a time limitation.

An additional requirement imposed upon Washington employers by the Safe Start Proclamation is a mandate that almost all workers wear cloth face coverings beginning June 8. Continue Reading

Be Aware: SHSH Violations Will Be Treated As WISHA Violations

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

The Status of Washington’s COVID-19 Restrictions: Phased Reopening, Contact Tracing, and Mask Requirements

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

Alaska Reopens for Business

Much of Alaska will be allowed to reopen as of 8 a.m. on May 22.   Governor Dunleavy has announced that the state will move straight from its current Phase II of the Reopen Alaska Responsibly Plan, which permits only limited business operations, to Phase IV.  Most businesses will be allowed to fully reopen on Friday.  While the state has issued general guidance and is expected to issue more detailed safety guidelines for specific businesses, each business will be expected to self-regulate.  The guidelines are suggestions and not mandates.

Limited exceptions to full reopening include independent commercial fishing vessels, which remain subject to Health Mandate 017, and health care providers, which remain subject to Health Mandate 015.  In addition, travel restrictions still remain in place, including the requirement that travelers entering Alaska from out of state must quarantine for 14 days upon arrival (per Health Mandates 010 and 018).  While large gatherings will be permitted, organizers are encouraged to consult with public health officials prior to scheduling large events in order to ensure they are carried out safely.

Though statewide restrictions are relaxing, businesses will still be subject to any local requirements or restrictions.  For example, Anchorage currently remains in Phase 2 of Safe Anchorage: A Roadmap to Reopening.