Washington’s COVID-19 business rules ended April 1, earlier than the anticipated May 11 date, the Department of Labor & Industries (L&I) has confirmed.
Craig Blackwood, Division of Occupational Safety and Health assistant director at L&I, said the agency decided Washington’s rules would expire April 1, knowing the national COVID-19 emergency would end soon after. While May 11 was the anticipated end date of the national emergency, President Joe Biden signed a bill ending it on April 10.
Key COVID-19 Rules That Have Ended:
- COVID-19 exposure and outbreak reporting in the workplace
- Extra handwashing facilities and COVID-19 prevention education in the workplace
- Accommodations for high-risk employees seeking more COVID-19 protections
- Frontline workers who contract COVID-19 at work may no longer be eligible for workers’ compensation coverage
- COVID-19 claims in your business will impact your L&I experience rating, and these costs will be included in your experience rating calculations starting July 1, 2023
Blackwood said L&I’s guidance preventing COVID-19 in Washington workplaces has been updated and can be read here.
A Smooth Transition – Navigating Tricky Situations
The Seattle Metro Chamber connected with L&I and legal experts to answer questions around key topics.
Employee Accommodations
To reduce COVID-19 infections, some high-risk employees have had special accommodations including moving from a cubicle to their own office, working remotely, changing shift schedules to ride transit when there are fewer people or changing shift schedules to work with fewer people.
Priya B. Vivian, shareholder and labor, employment & benefits team co-chair at Lane Powell, said if you have employees who received accommodations strictly under the now-paused Health Emergency Labor Standards Act (HELSA), there are a few proactive steps that can help determine next actions.
- Check in with the employee to confirm they want accommodations to continue as a reasonable accommodation under applicable policies.
- If the employee still seeks the accommodation, be sure to follow your reasonable accommodation policies, and connect with your organization’s HR team to engage the employee in the appropriate interactive processes. These employees may still be entitled to accommodations under other existing laws, including:
- Work with legal counsel and an HR team experienced in accommodations who will help you navigate the process, and be sure to document the process.
Vaccine Policies
If your business implemented a mandatory vaccine policy for employees – is now the time to end it? Vivian said businesses can consider rolling back or amending vaccine policies to make it clear the policy only applies during a public health emergency.
According to the Centers for Disease Control and Prevention, “COVID-19 vaccines help protect against severe illness, hospitalization and death. People who are up to date on COVID-19 vaccines are much less likely to experience severe symptoms than people who are not up to date.”
Many people felt more comfortable returning to the office because of vaccines, Vivian said.
Vivian cautioned employers who wish to make vaccines mandatory: existing laws, including the ADA, the Washington Law Against Discrimination and Title VII, all provide for medical and religious-based accommodations under certain circumstances. For example, employers may require that all employees meet a qualification standard (including safety-related standards). However, under the ADA, employers may only require an individual with a disability to meet such a standard if the standard is job-related and consistent with business necessity as applied to that employee. If the employee cannot meet the qualifications standard due to a disability, then the ADA provides a process an employer must follow to determine next steps.
Vivian noted that with the public health emergency ending, it is possible that it will be harder to show that vaccines meet the business necessity standard.
Explore with your legal counsel if your vaccine policy would meet the business necessity standard today, and remember, you don’t want policies on the books that you won’t enforce. Also, vaccines and at-home tests are not likely free to employees now that the emergency has ended, and continuing policies requiring these items likely means employees incur extra costs.
Talk with legal counsel and decide whether you will end the policy, will continue the policy or will modify the policy. If ending the policy is the correct action, Vivian recommends amending the policy to make clear it is only in effect during a public health emergency. This will make it easier to bring it back in the future if needed. With any change in policy, create an avenue for employee concerns – a place employees can go to someone well-equipped and ready to answer questions.
Masking and PPE
Work is underway at the state level to make voluntary personal protective equipment like masks permissible in the workplace regardless of the end of the emergency.
Blackwood said L&I’s intent is to make this PPE rule permanent so employees can still use a mask or other PPE of their own as long as it doesn’t create a greater hazard in the workplace. He said he expects the rule to be finalized later this year.
Vivian said employees will have varying levels of comfort in returning to more in-office activities. “Masks Welcome” signs in the workplace help everyone feel comfortable if they want to wear a mask to work.
An Employee Has COVID-19: Should They File a Workers’ Comp Claim or Use Other Leave Benefits?
Because presumptive coverage has ended, it is now unlikely that employees contracting COVID-19 will qualify for workers’ compensation, said Brenda Heilman, deputy assistant director for Insurance Services at L&I. Part of the workers’ comp evaluation is whether the employee has an increased risk or greater likelihood of contracting the disease because of his or her occupation – for example nurses or EMTs who may be treating a COVID-19 patient. The condition must arise out of work, not just happen at work. Employees should be encouraged to apply for workers’ comp if the situation is difficult to discern, and here are additional types of leave employees can take if they are ill:
- Paid Sick Leave will be the most likely used program and will provide the most coverage.
- Family Care Act allows employees to take paid leave of their choosing to care for a loved one.
- Paid Family and Medical Leave is potentially a program for employees with COVID-19, if the employee is severely bedridden or hospitalized, and could be used over one calendar year if Long COVID occurs.
Workers’ Comp Claims Will Be Included in L&I Experience Rating Calculations
Starting July 1, 2023, the COVID-19 business relief L&I provided is going to end, Michael Ratko, assistant director for Insurance Services at L&I said. When a business reported a COVID-19 claim, there was no impact to the business’ L&I experience rating. Starting July 1, COVID-19 claims will impact experience ratings and RETRO program calculations, Ratko said. Claims reported through June 30, 2023, will not impact ratings.
More Questions?
If you or your staff have any questions about navigating tricky situations that arise from the roll back of the COVID-19 business rules, click here to submit your question to the Seattle Metro Chamber and we’ll provide answers to common questions in future updates.
Want more guidance? See L&I’s updated rules here.
Special thanks to Cyal Christmas, self-insurance compliance operations manager at L&I, and Ellen Saline, labor standards senior policy manager at L&I, for providing additional information.