On April 13, 2020, Washington Governor Inslee issued a proclamation prohibiting employers from engaging in certain employment practices with respect to employees considered high-risk under the proclamation. The proclamation, which remains in effect until 11:59 p.m. on June 12, 2020, requires employers to: (1) utilize all available options for alternative work assignments to protect high-risk workers (e.g., telework, social distancing measures); (2) permit high-risk employees who cannot take advantage of such alternative assignments to use any available employer-granted accrued leave or unemployment insurance in any sequence at the discretion of the employee; (3) fully maintain all employer-related health insurance benefits for employees who have exhausted leave, until they are eligible to return to work; and (4) refrain from taking adverse employment action against an employee for exercising their rights.

Among other things, the proclamation also prohibits “all public and private employers . . . and labor unions representing employees in Washington State from applying or enforcing any employment contract provisions that contradict or otherwise interfere with the [proclamation’s] prohibitions and . . . intent.”

High-Risk Individuals: According to the governor’s news release, the term “high-risk individuals” (as defined by the CDC) includes people “65 years of age and older” and “people of all ages with underlying medical conditions, particularly if not well controlled.”  The phrase “underlying medical conditions” is not defined by the proclamation or by the CDC.  The CDC, however, provides the following examples of underlying medical conditions:

• People with chronic lung disease or moderate to severe asthma
• People who have serious heart conditions
  
  • People who are immunocompromised (many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune-weakening medications)
• People with severe obesity (body mass index [BMI] of 40 or higher)
• People with diabetes
• People with chronic kidney disease undergoing dialysis
• People with liver disease

This list is not exhaustive. Without further guidance, the analysis of whether an employee qualifies as high-risk will be fact-specific.  Given the language in the proclamation that it is to be construed to protect employees from job loss, employers should proceed cautiously before determining that an employee is not high-risk.  Employers may still require the employee to provide medical documentation, but note the documentation process may be delayed during the pandemic.  As a result, employers are advised not to delay taking action in response to requests from presumptively high-risk employees until medical documentation is provided.

Requests for Alternative Work Assignments: Notably, the proclamation provides that if a high-risk employee requests a reassignment, employers must utilize “any and all options” for alternative work assignments. This phrase is not defined by the proclamation and is potentially more expansive than the reasonable accommodation standard under existing federal and state disability laws.  Accordingly, employers may need to consider creative options for teleworking and social distancing measures that they may have otherwise considered to be unreasonable in the absence of COVID-19.

Maintaining Employee Benefits: The proclamation requires employers to fully maintain all employer-related health insurance benefits. The phrase “fully maintain” is undefined. Employers must work with high-risk employees and their third-party administrators to take affirmative steps to ensure benefits do not lapse until the employee is able to return to work.  The proclamation does not mention or seek to address the ERISA preemption issues this raises with respect to self-insured medical plans.

Applicability to Layoffs and Reductions in Force:  In the event of layoffs and reductions in force, employers need to ensure they are complying with any company policies regarding payout of paid time off at termination and that they are not taking any action to adversely impact unemployment benefits. Likewise, employers need to ensure that any layoffs or reductions in force are not penalizing an employee for exercising rights under the proclamation.  When conducting a traditional reduction in force or layoff analysis, employers may consider high-risk employees as an additional protected class under this proclamation.

Criminal Penalties:  Any person willfully violating an emergency order issued by the governor is guilty of a gross misdemeanor.

Potential Challenges: There are uncertainties about whether the governor’s emergency powers under RCW 43.06.220 cover all actions ordered in the proclamation.  As noted, there is a question of whether ERISA preemption applies to the medical coverage obligation for self-insured employers.  In addition, the provisions purporting to override collective bargaining agreements may be preempted by federal labor law.