Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On May 11, 2021, Washington State Governor Jay Inslee signed into law SB 5115, the Health Emergency Labor Standards Act (HELSA), which expands the workers’ compensation framework for infectious and contagious diseases and imposes new notice requirements on employers. The law adopts language similar to that contained in California’s SB 1159 (establishing a rebuttable presumption for workplace transmission of COVID-19) and AB 685 (creating notice requirements for potential workplace exposure to COVID-19) with some notable differences.
Which Workers are Covered?
The new law applies to industries with frontline workers, including:
- First responders such as law enforcement and paramedics
- Employees in food processing and distribution industries
- Maintenance, janitorial, and food service workers at any facility treating patients with infectious or contagious disease subject to a public health emergency
- Drivers and operators employed by transit agencies
- Child-care facility employees
- Retail store employees who have in-person interaction with the general public
- Hotel, motel, or transient accommodation employees
- Restaurant employees
- Home care aides
- Correctional officers
- Educational employees (K-12 and higher education) who have in-person interaction
- Public library employees
- Nursing homes employees
What Does the Presumption Mean?
Under a public health emergency, SB 5115 provides a “prima facie presumption” that infectious or contagious diseases transmitted through respiratory droplets, aerosols, or contact with contaminated surfaces are occupational in nature. To rebut the presumption, an employer must establish that exposure occurred during nonemployment (or other employment) activities, leave from work, or during a period of quarantine occurring immediately prior to the injury or occupational disease.
To What Benefits is the Employee Entitled?
Under the Washington’s workers’ compensation statutory scheme, this presumption provides workers’ compensation benefits, including time loss or temporary disability benefits, for frontline employees who contract infectious or contagious diseases. If a frontline employee qualifies for paid sick leave benefits under a federal or state program during the public health emergency, however, temporary disability benefits are not payable for the time period covered under the program.
SB 5115 eliminates the three-day waiting period traditionally required to receive temporary disability benefits. Under the new law, worker benefits commence the day after the worker contracts the occupational disease, which is defined as the earlier of the date the employee first missed work due to symptoms, the date the worker was quarantined by a medical provider or public health official, or the date the worker received a positive test result.
Reporting Requirements for “Outbreak”
SB 5115 creates a new reporting requirement to the Washington State Department of Labor and Industries (L&I) in the event of an outbreak. Under SB 5115, an outbreak exists during a public health emergency when an employer with more than 50 employees at a workplace or worksite has 10 or more employees at the workplace test positive for the infectious or contagious disease. Unlike California’s AB 685, which limits an outbreak to three positive cases within a 14-day period, SB 5115 does not demarcate a timeframe within which to count the 10 positive cases. Because HELSA requires the L&I to consult with the Department of Health before issuing any regulatory rules or directives, presumably those time periods will be provided on a disease-by-disease basis.
Protections for High-Risk Employees
The new law also appears to codify Governor Inslee’s Executive Order 20-46, which provides protections for high-risk employees. Specifically, SB 5115 prohibits discrimination against high-risk employees seeking accommodations to protect them from the risk of infectious disease exposure. In the event no reasonable accommodation exists, an employer is required to provide employees with all available leave options.
What Kind of Notice Must Employers Provide Employees?
A “potential exposure” occurs when an individual at the worksite has a positive confirmed case of an infectious disease. Similar to California’s AB 685, under SB 5115 employers must take the following actions within 24 hours of the occurrence of a “potential exposure”:
- Provide written notice to all employees and employers of subcontracted employees who were at the worksite within the infectious period who may have been exposed to the infectious or contagious disease.
- Provide written notice to employee representatives.
Written notice may include, but is not limited to, personal service, e-mail, or text message if it can reasonably be anticipated to be received by the employee within one business day of sending and must be in English and the language understood by the majority of the employees. Notably, however, health care facilities such as hospitals and clinics are exempted from the “all employee” reporting obligation.
To take advantage of SB 5115’s rebuttable presumption, employers and claims administrators must work quickly to diligently investigate each positive test result and collect evidence establishing that the transmission occurred outside of the workplace. Additionally, employers are strongly encouraged to consult with counsel regarding proper notification requirements whenever employees test positive for an infectious disease.