Washington’s COVID-19 State of Emergency Ends October 31: What Does this Mean for Local Governments?

Editor's note:

• This blog post was updated on October 11 to note that a COVID-19 presidential emergency deciaration is still in effect and to clarify its impacts, as well as to add a summary table at the end. On October 19 we added information on vaccination requirements for agencies such as public hospital districts that participate in Medicare or Medicaid.
• On October 28, Governor Inslee officially issued the proclamations terminating the state of emergency effective at 11:59 PM on October 31. The new documents confirm the information below. For more information, including a few small clarifications regarding vaccination requirements, face masks, and reporting/notification, see our blog post Governor Inslee Ends the COVID-19 Emergency.

On February 29, 2020, in response to the COVID-19 health crisis, Governor Inslee declared a state of emergency for the State of Washington. Now, over two and a half years later, that state of emergency and all remaining emergency proclamations are scheduled to be lifted on October 31, 2022 (see the governor’s press release).

The COVID-19 pandemic has been a long and exhausting experience for citizens and governmental agencies in the State of Washington and, while COVID-19 remains a reality, the state governmental restrictions associated with the pandemic will mostly be a thing of the past by the end of this month.

Background

Governor Inslee’s February 29, 2020, state of emergency declaration gave him broad authority to prohibit activities that he reasonably believed was necessary “to help preserve and maintain life, health, property or the public peace” and to waive or suspend certain statutes and rules (RCW 43.06.220).

Based on this state of emergency, Governor Inslee issued numerous proclamations, including a shelter-in-place requirement, a mask mandate, vaccination requirements for certain workers, a proof of vaccination or negative test requirement to attend large events, an eviction moratorium, a prohibition on utility shutoffs and late fees, a waiver of the requirement to have in-person open public meetings, and more. It was — a lot.

Many of these emergency orders have already expired, but some still remain. The purpose of this blog is to review what impact local governments will experience once the emergency officially ends. While the governor has not yet formally rescinded the declaration of emergency and associated emergency proclamations, here is what we expect to happen if and when that occurs on October 31.

Open Public Meetings

During the height of the pandemic, Proclamation 20-28 et seq. prohibited governing bodies from meeting in-person, instead requiring governing bodies to hold meetings on a remote platform. Later, that restriction loosened a bit, allowing for optional in-person meetings while still requiring a remote platform.

The remote public meeting requirement and restrictions on holding in-person public meetings expired June 1, 2022. Upon expiration of the proclamation, the newly revised OPMA applied. (For a refresher on the OPMA changes during the last legislative session, see my blog The OPMA Gets an Update from the Legislature.)

Under RCW 42.30.230 the current status of open public meetings is that they must be held at a physical location where the public can attend, unless a local, state, or federal emergency has been declared and the public agency determines it cannot hold an in-person meeting with reasonable safety. While state law encourages agencies to offer a remote attendance option along with its in-person option (see RCW 42.30.030), they are no longer required to do so.

While the state’s declaration of emergency will be lifted, local governments can still rely on their own declared state of emergency or a federal emergency declaration (such as the president's emergency declaration) to hold a fully remote meeting if they detail their reasoning why the local or federal emergency prevents them from meeting in person.

Vaccine Mandates

COVID-19 vaccine mandates were a hot (and controversial) topic at the height of the pandemic. While some employers chose to adopt a local requirement that their employees be vaccinated against COVID-19, certain positions were required to be vaccinated by the state (most recently Proclamation 21-14.5). Notably for local governments, workers in the healthcare/childcare settings (including many firefighters and emergency medical technicians) were required to be vaccinated against the virus.

After October 31, 2022, vaccination for workers in the healthcare/childcare setting will no longer be a state requirement.

However, agencies that participate in Medicare or Medicaid programs, including public hospital districts, still need to be aware of the Centers for Medicare and Medicaid Services (CMS) rule that requires COVID-19 vaccinations for workers in health care settings. See the CMS COVID-19 Vaccination Requirements for Health Care Providers and Suppliers and a December 28, 2021 CMS memo (revised April 5, 2022). The interim final rule with public comment (published November 5, 2021) states that this requirement is not associated with or tied to any federal public health emergency (PHE) declarations and does not have a sunset clause. Medicare interim rules expire three years after issuance unless finalized, and CMS expects to make a future determination on whether it will be necessary to conduct final rulemaking and make this rule permanent. 

Otherwise, absent any local policy to the contrary, non-vaccinated individuals can be hired (or re-hired) into these healthcare/childcare positions. As noted in Governor Inslee’s September 8 press release:

[State v]accination requirements for health care and education workers will end, but employers will continue to be able to require them if they choose. Inslee has already announced that COVID-19 vaccination will remain a condition of employment for most Washington state agencies.

Mask Requirements

Similar to vaccine mandates, mask requirements have also mostly disappeared, with few if any local governments (outside of public hospitals) requiring facial coverings in the workplace. Any remaining mask mandate requirements were issued by the state Secretary of Health, and those are anticipated to continue after October 31, 2022. (The most recent Secretary of Health Order 20-03.9 requires face masks in correctional and jail facilities when the Centers for Disease Control and Prevention‘s COVID-19 level is medium or high in the county where the facility is located, as well as in health care and long-term care settings regardless of the county’s COVID-19 level.)

Even if masks are not required, employers must generally accommodate employees or contractors who voluntarily choose to wear a face mask or other personal protective equipment during a public health emergency, with certain exceptions related to workplace safety and security (RCW 49.17.485). This statute is triggered when the president or governor declares a public health emergency or when the local health officer issues a public health order. Since there is still a declared presidential emergency, these protections will continue even after the governor’s emergency declarations end, and agencies must remain aware of any local health orders that might be in place.

The governor’s September 8 press release states:

The statewide Face Covering Order issued by the state Department of Health will remain in place for health care and long-term care sittings, as well as correctional facilities under certain circumstances after the state of emergency ends. The governor is also looking at options to ensure there are protections for workers who choose to wear a mask in their workplace.

Notification and Tracking Requirements

Proclamation 20-25.19, known as “Washington Ready,” includes a provision that requires employers to notify their local health district if they suspect COVID is spreading in their workplace. That notification requirement will terminate with the lifting of the emergency at the end of this month. While that proclamation is expiring, the following notification requirements in RCW 49.17.062-.064 still apply until the president rescinds the national COVID-19 emergency declaration:

• Notification to the Washington Department of Labor and Industries (L&I) when ten or more employees have tested positive for COVID-19, and  
• Notification to employees when the employer receives a notice of potential exposure to COVID-19.

For more information on employer responsibilities, see the L&I requirements and guidance for preventing COVID-19.

Additionally, Proclamation 20-64.5 is also still in effect and expressly prohibits public agencies from releasing certain information related to COVID-19 contact tracings or logs. Although this express prohibition will no longer be in effect after the lifting of the emergency, the proclamation was really a belts-and-suspenders approach to exempting contact tracing logs from public disclosure. As detailed in the proclamation, the following exemptions can likely be applied to protect contact tracing logs from public disclosure:

• RCW 42.56.230(1) exempts personal information in files maintained for “patients or clients” of “public health agencies”;
• RCW 42.56.270(1) and, as an "other statute" in RCW 42.56.070(1), chapter 19.108 RCW, the Uniform Trade Secrets Act, could apply to visitor and customer log information collected by businesses and provided to a public health agency for contact tracing following a new case of infection as proprietary information and research data.

Other Miscellaneous Matters

Proclamation 20-78 restricted combined city and county health departments and any members of a health district from undertaking efforts to terminate or withdraw from the department or district. This restriction will end once the emergency is lifted.

The state adopted workplace safety and health rules during the pandemic to protect high-risk employees from being discharged, replaced, or discriminated against in the workplace for seeking accommodation from exposure to an infectious or contagious disease during a public health emergency. These protections are only triggered when a public health emergency that covers every county in the state is declared by either the U.S. President or the Washington State Governor. While the state’s emergency will end on October 31, 2022, the federal state of emergency is still in effect so these rules will continue to apply until President Biden lifts the nationwide emergency.

While not associated with the governor’s emergency proclamation, some agencies did adopt administrative or other special paid leave for those who were required to quarantine as a result of COVID-19. Employers may continue with these policies at their discretion: One thing to note is that the CDC updated its quarantine guidance some time ago, recommending five days quarantine for those who test positive for COVID-19.

Summary

To help keep all of this information straight, here is a quick reference table: