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High-risk Employee Accommodation Update - Proclamation 20-46.3

COVID-19 Info Hub, Update

This post is a general overview and is not legal advice and should not be relied on for any purpose, as there are complex legal issues involved in accommodating employees at high risk of serious illness that are not addressed here. For more information, contact ksutherland@omwlaw.com.

Washington Governor Jay Inslee recently issued Proclamation 20-46.3, which includes some significant changes to the requirements for employers to accommodate employees who are at high risk of severe illness from COVID-19. In a nutshell, Proclamation 20-46.3 requires employers to do the following:

Utilize all available options for alternative work assignments to protect high-risk employees, if requested, from exposure to COVID-19; and
Permit any high-risk employee in a situation where an alternative work arrangement is not feasible to use any available employer-granted accrued leave or unemployment insurance, in any sequence, at the discretion of the employee; and
Not take any adverse employment action against employees for exercising their rights under this Proclamation that would result in loss of their current employment position by permanent replacement; and
Not make changes to a high-risk employee’s accommodations under Proclamation 20-46, et seq., without providing the employee 14 calendar days’ written notice in advance itemizing the changes.

Proclamation 46.3 also allows employers to take some actions they could not take under the prior versions of Proclamation 46, including the following:

Employers can require medical verification from employees who avail themselves of the protections of this Proclamation. Specifically, employers can require employees to provide a determination of, or medical opinion from, a health care provider as to whether the employee is high risk and whether the employee may be able to return to the workplace with additional accommodations in place, taking into consideration the employee’s medical condition, vaccination status, and the particular circumstances of their job or workplace. To obtain medical verification, employers must follow the same interactive process required by state and federal disability laws, ensuring that employees have a reasonable amount of time to respond.
Employers are no longer required to fully maintain all employer-related health insurance benefits. With 14 days’ advance notice (see paragraph 4 above), employers can end health insurance benefits as of the calendar month following the month in which the notice became effective. For example, if notice was given on April 20, 2021, the 14-day notice period ends on May 4, 2021 and coverage would end on May 30, 2021. There are some exceptions; for example, if the employee is entitled to a continuation of health care benefits under FMLA, the state Paid Family and Medical Leave Act (PFML), a collective bargaining agreement, or other condition specific to the employment relationship (e.g., an employment contract or policy). Also, employees may be eligible to continue their coverage under COBRA. There is assistance with COBRA premiums available through September 30, 2021, which employers need to describe in their COBRA notices. Additionally, Washington Healthplanfinder has options for coverage.

Under Proclamation 20-46.3, employers can still hire temporary employees, as long as they do not negatively impact employees’ rights to return to their position without any negative ramifications to their employment status. Also, employers can still require employees to give up to five days’ advance notice of any decision to report to work or return to work under this Proclamation. Additionally, an employer can still take an employment action such as a reduction in force when no work reasonably exists, so long as the employer does not take action that may adversely impact an employee’s eligibility for unemployment benefits.

Proclamation 20-46.3 will remain in effect for the duration of the current state of emergency related to COVID-19 or until otherwise rescinded or amended. The Governor also issued an FAQ explaining the Proclamation, which was last updated on May 3, 2020. Links to the Proclamation, the FAQ, and the CDC definitions used in the Proclamation to establish that an employee is a “high risk employee” are below:

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