Face Coverings and Vaccine Requirements: Where Things Stand as of August 23, 2021

Editor's notes:

• We have updated this post to clarify the exceptions under which an employee may remove their facial covering at work, and to update the applicability of the requirements to firefighters, police officers, and jails based on revised FAQs from the governor’s office on August 27, 2021.  
• We have also added reference to a September 13, 2021 order from the Secretary of Health requiring that face masks be worn at outdoor events of 500 people or more, and we've added updates to guidance regarding vaccination requirements for childcare workers.
• For more information on vaccine exemptions and accommodations, see our follow-up blog post Vaccine Mandates: Accommodating Disability and Religious Belief Exemptions.​

As COVID-19 cases and hospitalizations trend upwards, Washington State government agencies have adopted new requirements related to face coverings and vaccines.

In this blog we will summarize the new statewide requirements, but remember, since local governments (including health officers and departments) can enact more restrictive requirements, we recommend you check in with them as well.

Face Coverings in the Workplace

The state Secretary of Health issued Order 20-03.4 requiring face coverings indoors for all individuals five years old and older regardless of vaccination status (with certain exceptions). This includes employees and visitors to your agency buildings. The order takes effect August 23 and remains in effect until rescinded, superseded, or until the governor terminates the state of emergency. The Secretary of Health also issued Order 20-03.5 on September 13, 2021, which adds a requirement that face coverings be worn at outdoor events of gatherings of more than 500 people.

There are some limited exceptions to the face mask requirement, including:

• Fully vaccinated workers working indoors in areas not generally accessible to the public and when no customers, volunteers, visitors, or non-employees are present, and
• Employees working alone indoors (regardless of vaccination status). A person is working alone if they are isolated from interactions with others and have little or no expectation of in-person interruptions. Examples include a sole occupant in an office with a closed door who is unlikely to be visited, delivery drivers with no face-to-face interaction with others, or a lone janitor in a building.

The order still includes an exception for medical conditions and other disabilities. Employers are required to provide a safe workplace under Department of Labor & Industries requirements, and Proclamation 20-25.15 (August 20, 2021) prohibits businesses from allowing customers to be indoors if not masked in accordance with Order 20-03.4.

While there is no specific guidance, the order and proclamation could be interpreted to require agencies to exclude people who cannot wear a face covering from receiving in-person services. Even if not required, agencies could choose to do so but should look at how they can accommodate unmasked individuals by providing alternative and remote methods to access government services and meetings.

Requirements for public meetings

Primarily remote public meetings with an optional in-person component remain the rule under Proclamation 20-28.15 (last amended January 19, 2021, which extends the prohibitions and guidance in Proclamation 20-28.14).

There are currently no specialized provisions regarding face coverings at public meetings — the current Miscellaneous Venues guidance that applies to public meetings simply refers agencies to the Secretary of Health’s orders and other related state guidance documents. In the absence of specific provisions, we believe that the general restrictions apply and everyone attending an indoors public meeting must wear a face covering. If a person cannot or will not wear a mask, they can be excluded from the public meeting, but the agency should provide for alternative (remote) access if possible.

The proclamation does allow a face covering to be removed “while obtaining a service or engaged in a transient activity that requires temporary and very brief removal of the face covering,” So, agencies could allow removal of face coverings while a person attending a meeting is speaking. Additionally, while physical separation is not required in Order 20-03.4, agencies hosting public meetings should consider imposing a physical separation requirement if they allow a temporary removal of a face covering in order to take advantage of the exception to the masking requirements.

Updated State Vaccination Requirements

On August 20, Governor Inslee issued Proclamation 21-14.1 and expanded the vaccine requirements, which originally applied only to state agency workers and health care providers, to workers at K-12 schools, universities, and childcare programs (including parks and recreation programs for youth). This proclamation also revises and clarifies some of the language in the original proclamation, such as vaccination requirements for contractors, as discussed below.

For a quick overview of state and local authority to require vaccinations, see our previous blog, COVID-19 Vaccination Requirements in the Local Government Workplace. We should also note that the Pfizer vaccine (which will now be marketed as Comirnaty) received full U.S. Food and Drug Administration (FDA) approval for people 16 and older on August 23 and is no longer subject to emergency use authorization (EUA) for that age group.

Proclamation 21-14.1 requires most state employees, health care/long-term care workers, and workers in educational settings to be fully vaccinated (two weeks past their final vaccination) by October 18. The vaccine requirement applies to all workers in a health care or educational setting, with limited exemptions. The proclamation defines workers to include anyone “engaged to work as an employee, on-site volunteer, or on-site contractor.”

For a handy guide on when a vaccine series must be started to comply with the state deadline, see this COVID-19 vaccination timeline created by Skagit County Public Health.

The governor also encourages local governments, as employers, to institute their own vaccine requirements for their employees not otherwise covered by the proclamation.

Health care workers

The Department of Health (DOH) has come out with guidance on the COVID-19 vaccination requirement for healthcare providers and workers and the settings in which this applies, which answers many questions. While we recommend you review the proclamation and guidance with your attorney, here are what we think are a few highlights.

The DOH guidance interprets this language broadly to include any employee working within a health care setting, regardless of whether they have any kind of patient contact or actually provide health care services. Certain volunteers and contractors may be exempt, as discussed in more detail below.

The governor’s office updated its guidance on August 27. In its FAQ the guidance says that the requirement also applies to Emergency Medical Service (EMS) personnel and firefighters "whenever licensed by the state as an EMT or paramedic, or whenever performing medical functions in their official course of duty." Volunteer firefighters whose positions are restricted to emergency calls and do not perform medical services as a function of their position description are not covered by the proclamation.

“Health care providers” includes people certified by the DOH who are actively practicing and providing services. The list of DOH-certified individuals subject to the proclamation includes Emergency Medical Responders (EMR) and Emergency Medical Technicians (EMT), and many firefighters hold one of these credentials. Further, “health care settings” include “mobile clinics or other vehicles where health care is delivered.” This means that anyone who works in an ambulance, including the driver, would be subject to the proclamation. 

According to the new FAQ, law enforcement officers are not required to be vaccinated by the proclamation “because their performance of medical functions is merely incidental to their role in law enforcement.”  

Another item of note from the FAQ, “County and municipal jail staff are included in the mandate if they are a licensed healthcare provider or work in the medical treatment area. Other parts of the jail are not considered healthcare settings, and therefore, any jail staff whose primary duties do not include healthcare are excluded.” 

Childcare workers (including parks and recreation staff)

In the context of educational workers, the definition of “Educational Setting” specifically covers “all early learning and childcare programs serving groups of children from multiple households,” which includes, in additional to the typical licensed childcare facilities, all license-exempt preschools and license-exempt youth development programs.

This means that the requirement applies to agency on-site childcare programs and youth parks and recreation programs that provide childcare and in-person basic supports for children and youth.

According to the DOH guidance, COVID-19 Vaccination Requirement FAQs for Child Care, Early Learning, and Youth Development Providers, this does not include parks and recreation programs that provide primarily enrichment activities such as sports, arts, and camping.   

If your program employs minors who are too young to receive a COVID-19 vaccine as approved by the FDA, should they become eligible for the vaccine, the agency then has 60 days from the date of eligibility to bring these staff into compliance.

On-site contractors and volunteers

In the latest update of the proclamation, on-site healthcare/educational volunteers and contractors are excluded from the vaccine requirement if they are on site for very short periods and have no or fleeting contact with others on-site.

For those contractors or subcontractors who are on-site for longer periods, the proclamation allows agencies to opt to rely on contractor employers to certify to the agency that any or all individual contractors and subcontractors are vaccinated. If agencies elect this option, the contractor’s employer must submit a signed declaration in substantially the form prescribed in RCW 5.50.050 declaring that the employer has met the requirements and the local agency retains the right to investigate or inquire into the employer’s compliance, to obtain proof of vaccination directly from any contractor-employee, and to withdraw the election in whole or in part at any time.

For educational settings, on-site contractors who do not work with students or other individuals receiving services are not subject to the vaccine requirement.

Medical and religious exemptions

Any vaccine required as a condition of employment is required to have at least an Americans with Disabilities Act (ADA) exemption (confirmed by a medical professional) and a religious exemption. We have collected a few sample forms:

• Bellingham draft ADA exemption form
• Bellingham draft religious exemption form
• Pacific Lutheran University combined exemption form
• University of New Mexico exemption forms webpage

For more information on medical and religious exemptions and accommodations, see our follow-up blog post Vaccine Mandates: Accommodating Disability and Religious Belief Exemptions.

Other Issues

Some questions that still remain unanswered involve the impact of these mandatory vaccine requirements on collective bargaining agreements and unemployment benefits. The Employment Security Department (ESD), which administers unemployment benefits, has indicated it will consider claims on a case-by-case basis, but it will likely focus on whether ADA or religious exemptions or accommodations were provided.

Law enforcement agencies are required by state law to enforce orders issued from health officials. And while they have the authority to investigate violations of the governor’s orders whether they are obligated to do so is not as clear. Local law enforcement and prosecuting attorneys retain their traditional discretion to allocate their resources.  

As new guidance is provided by state agencies, MRSC will update its Coronavirus (COVID-19) Resources for Local Governments topic pages.