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Additional Rights for Employees at High Risk for Coronavirus Complications

April 15, 2020  by  Karen Sutherland
Category:  Leave Policies COVID-19

Additional Rights for Employees at High Risk for Coronavirus Complications

Editor’s notes: On July 29, 2020, Governor Inslee issued Proclamation 20-46.2, extending the employment protections for high-risk workers for the duration of the statewide emergency, or until amended or rescinded. The proclamation also included a new memorandum clarifying the scope of the order and when an employer may require an employee to submit verification from a medical provider.

On April 8, 2021, the governor issued Proclamation 20-46.3, which continues the protections for high-risk workers but no longer prohibits employers from requiring medical verification. Employers may commence this process on April 9 but may not require this information until April 23. In addition, employers are no longer required to fully maintain employer-related health insurance benefits unless the employee is otherwise eligible under the Family and Medical Leave Act, a collective bargaining agreement, or another agreement. Employers must provide written notice of any changes to a high-risk employee’s accommodation at least 14 calendar days in advance. Also see the governor’s FAQs for Proclamation 20-46.3. (The governor’s previous memorandum attached to Proclamation 20-46.2 is rescinded effective April 23, 2021.)

On April 13, 2020, Governor Inslee issued Proclamation 20-46, which provides additional rights and protections for workers at high risk for coronavirus complications, effective through (at least) June 12, 2020. To summarize, all Washington State employer — public and private — must:

  • Use available options for alternative work assignments to protect high-risk employees, if requested, from exposure to the COVID-19 disease, including but not limited to telework, alternative or remote work locations, reassignment, and social distancing measures;
  • Permit any high-risk employee to use any available employer-granted accrued leave or unemployment insurance in any sequence at the discretion of the employee if there is no feasible alternative work arrangement;
  • Fully maintain all employer-related health insurance benefits until the employee is deemed eligible to return to work if the employee’s paid time off exhausts during the period of leave; and
  • Not take any adverse employment action against an employee for exercising their rights under this proclamation that would result in loss of the employee’s current employment position by permanent replacement. However, employers can hire temporary employees so long as it does not negatively impact the permanent employee’s right under this proclamation to return to their employment position without any negative ramifications to their employment status.

In addition to the four requirements above:

  • Employers and labor unions cannot apply or enforce any employment contract provisions that contradict or otherwise interfere with the items listed above.
  • Employers can require an employee who does not report to work based on this Proclamation to give up to five days’ advance notice to the employer of any decision to report to work or return to work under this proclamation.
  • Employers can take employment action when no work reasonably exists, such as in a circumstance of a reduction in force, for a high-risk employee during this proclamation. However, if no work exists, employers shall not take action that may adversely impact an employee’s eligibility for unemployment benefits.
  • Violators may be subject to criminal penalties pursuant to RCW 43.06.220(5).

“High-risk” employees, for purposes of this proclamation, has the meaning described or defined in guidance issued by the Centers for Disease Control and Prevention. It currently includes the following:

  • People 65 years and older.
  • People who live in a nursing home or long-term care facility.
  • People of all ages with underlying medical conditions, particularly if not well controlled, including those with chronic lung disease or moderate to severe asthma; those who have serious heart conditions; and those 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).

MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.

About Karen Sutherland

Karen Sutherland is the Chair of the Employment & Labor practice area and a Member of the Litigation Department at Ogden Murphy Wallace, P.L.L.C. In addition to her wealth of employment law experience, Karen advises employers on a wide variety of issues such as hiring processes; employee performance measures and performance improvement plans; employee discipline; developing ADA-compliant job descriptions; FMLA leave; and reasonable accommodation of disabilities; and layoffs.

Karen is writing as a guest author. The views expressed in guest columns represent the opinions of the author and do not necessarily reflect those of MRSC.

VIEW ALL POSTS BY Karen Sutherland


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