On August 13, 2020, Governor Jay Inslee issued Proclamation 20-67: Food Production Workers Paid Leave. Proclamation 20-67 modifies previous proclamations to prohibit any food production employer from continuing to operate between August 18, 2020 and November 13, 2020, unless it provides its workers with emergency supplemental paid sick leave for a qualifying, COVID-19-related event within this window. The proclamation took effect August 18, 2020, and will remain in place until it is terminated or Washington’s Stay Home – Stay Healthy order, Proclamation 20-25, expires, whichever occurs first.

Which Employers Are Covered?

Covered Employers under Proclamation 20-67 include those operating:

• Orchards, fields, and dairies;
• All other industries specifically identified in Washington Administrative Code section 296-307-006, with some exceptions, including timber tracts, Christmas tree growing, tree farms, forest nurseries, and forestry services;
• Fruit- and vegetable-packaging warehouses (regardless of whether the warehouse is owned by the grower or producer); and
• Meat and seafood processors and packers, including those falling under the 3116 and 3117 NAICS industry codes.

Also covered are employers that are farm labor contractors under Revised Code of Washington chapter 49.30 (agricultural labor), but only if they are paying wages to a covered worker.

Which Workers Are Covered?

Covered workers under this proclamation are food production workers who have started providing services to a covered employer.  These include, but are not limited to:

• Domestic workers, i.e., Washington State-based workers, including those domiciled in Washington;
• “Seasonal or migrant workers,” as defined by the federal Migrant and Seasonal Agricultural Worker Protection Act (MSPA); and
• Temporary foreign workers who are lawfully present in the United States to perform agricultural labor or services of a temporary or seasonal nature pursuant to 8 U.S.C. sec. 1101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act.  

Importantly, the use of the term “worker” (rather than employee) appears to be intentional as this proclamation applies to both covered independent contractors and employees who perform work for the covered employer.

Notably, workers who are subject to and provided leave under the federal Families First Coronavirus Response Act (FFCRA), and workers within the covered employer’s immediate family, are not covered.

For What Reasons May Covered Workers Use Paid Leave?

The proclamation specifically defines which COVID-19-related events are qualifying events.  These are:

• The covered worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
• The covered worker is advised by a health care official or provider to self-quarantine or self-isolate due to concerns related to or a positive diagnosis of COVID-19;
• The covered worker is prohibited from working due to health concerns related to the potential transmission of COVID-19; or
• The covered worker is experiencing COVID-19 symptoms and is seeking a medical diagnosis.

Unlike the federal FFCRA, and similar state or local emergency paid sick leave laws, covered workers cannot use leave to care for or assist a family member.

According to a Guide for Employers published by the Washington Department of Commerce (DOC), to be covered, workers must be “providing direct labor to produce food, i.e., workers engaged in picking, harvesting, tending, pruning, packing, processing, etc.” The guide also indicates that workers who quarantine prior to commencing their duties with an employer are not eligible for paid leave under the program.

By September 14, 2020, or within seven days of beginning an isolation or quarantine, whichever is later, a worker seeking to use paid leave must provide their employer with information sufficient to establish that the worker meets the criteria set forth above.  The DOC has published a sample leave request form that may be used for this purpose.

How Much Paid Leave are Covered Workers Entitled to Receive?

The amount of paid leave to which covered workers are entitled depends upon their work schedule.  Covered workers scheduled to work “full-time” or at least 40 hours in the preceding two weeks are entitled to up to 80 hours of paid leave. Workers scheduled to work less than “full-time” and less than 40 hours in the preceding two weeks are entitled to an amount equal to the total number of hours the worker is normally scheduled to work during that two-week period; however, if the individual works a variable number of hours, their paid leave entitlement is 14 times the average number of hours the worker worked each day in the period preceding the date the worker took paid leave.

Each hour of the emergency supplemental paid leave must be compensated at a rate equal to $10.75 per hour.¹ Covered workers can start using leave immediately. Employers must pay workers for their paid leave within one pay period of the worker’s return to work.

Employer Reimbursement

Employers with workers who utilize leave pursuant to Proclamation 20-67 may apply for reimbursement for paid leave expenditures with the state.  By September 7, 2020, employers must file an initial application with the DOC.  The DOC has published a guide for employers regarding this application process, as well as the necessary forms. By September 30, 2020, employers must provide the DOC with an initial report identifying the total number of workers who received paid leave and the total amount paid as of September 16, 2020. A second report is due October 30, 2020.²  On November 13, 2020, the leave window expires, and employers must submit a reimbursement request by November 30, 2020.  According to the DOC, reimbursements will be processed in December 2020.

Recordkeeping

In order to receive reimbursement, employers must maintain records sufficient to establish how much leave was actually paid.  These records must include worker paid leave request forms, payroll statements for workers taking paid leave, and bank account statements showing amounts paid to workers taking paid leave. The forms need not be submitted with any application or reimbursement request to the DOC; however, the records must be maintained for six years and made available upon demand by the DOC or any other individual or entity acting on the agency’s behalf.  

How Does Paid Leave Under the Proclamation Interact with Other Paid Leave Benefits?

It is unclear how paid leave under the proclamation is intended to interact with other leave benefits covered workers may receive.  The stated intent of the proclamation “is to provide food production workers who do not have access to other state and federal sick leave programs with paid emergency supplemental sick leave (‘Paid Leave’) that can be used upon hire for reasons related to the COVID-19 pandemic.”

Covered employers with employees entitled to receive paid sick leave under Washington’s statewide paid sick leave law, the City of Seattle Paid Sick and Safe Time Ordinance, and/or the City of Tacoma Paid Sick Leave law,³ may wonder whether the paid leave required by the proclamation is in addition to paid sick leave benefits employees may receive under state and local law. Similarly, employers that provided employees with a voluntary paid leave benefit to address time off needs related to the COVID-19 pandemic may want to know whether they are entitled to a credit or offset for leave already provided.

For full-time workers only, the proclamation requires employers to substitute paid leave under the proclamation with any other paid sick leave provided, including leave provided to meet the employer’s obligations under Washington’s paid sick leave law if that leave is immediately available under the same terms described in the proclamation. It may be that covered employers can receive a credit or offset for paid sick leave provided to full-time covered workers, but that is far from clear under the text of the proclamation, and the state has yet to resolve this issue. The DOC’s guide indicates that covered workers that have leave available under a different program must exhaust all other banked leave before becoming eligible for leave under Proclamation 20-67.  Notably, the text of the guide does not limit this exhaustion requirement to full-time workers.

What Other Protections Apply?

The proclamation prohibits retaliatory or adverse employment action against a covered worker or any other employee for exercising or seeking to exercise rights under the proclamation. Violations of this prohibition may result in criminal penalties, i.e., any person willfully violating the proclamation is guilty of a gross misdemeanor.

Conclusion

Several ambiguities remain regarding this new proclamation.  Not only is it unclear how long the proclamation is intended to be in effect, but it is also unclear as to what extent employers may seek reimbursement for their paid leave obligations via a $3 million COVID-19 Food Production Paid Leave Program Governor Inslee announced.⁴ 

As with Washington’s COVID-19 reopening guidance, information on this new supplemental paid sick leave requirement is developing rapidly. Employers are encouraged to visit the governor’s website and consult with knowledgeable counsel to ensure compliance with the most up-to-date requirements and guidance.