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.
NOTE: This article was updated on March 26, 2020. Because the COVID-19 situation is dynamic, with new governmental measures each day, employers should consult with counsel for the latest developments and updated guidance on this topic.
On March 23, 2020, Washington State Governor Jay Inslee signed the Stay Home – Stay Healthy Order (Proclamation 20-25, the “Order,” linked here) directing Washingtonians to shelter in place. The Order follows similar state and local directives throughout the nation put in place to address the coronavirus crisis. With over 100 dead from COVID-19-related causes in Washington State as of the date of the Order, the Order seeks to slow further transmission of the virus and protect the capacity of businesses deemed essential in the State of Washington.
Governor Inslee’s Order “prohibit[s] all people in Washington State from leaving their homes or participating in social, spiritual and recreational gatherings of any kind regardless of the number of participants, and all non-essential businesses in Washington State from conducting business, within the limitations provided” in the Order.
From now until at least April 6, 2020 (with the possibility that the Order might be extended), individuals may leave their homes or residences only to participate in essential activities or for employment in essential business services. Essential activities include obtaining necessary household supplies such as groceries, remote work equipment, and cleaning products; accessing medical and veterinary care; caring for or transporting loved ones outside the home; and exercising outdoors while socially distancing.
How Does the Stay Home – Stay Healthy Order Affect Employers Operating Essential Businesses?
Under the Order, businesses deemed essential may continue operating and requiring certain employees, also deemed essential, to report to work. A business or a particular employee’s job duties are “essential” if they are listed as Essential Critical Infrastructure Workers in the appendix to the Order (linked here). This detailed list defines the scope of “essential workforce” in critical sectors of the economy, including:
- Healthcare/Public Health;
- Emergency Services;
- Food and Agriculture;
- Water and Wastewater;
- Transportation and Logistics;
- Communications and Information Technology;
- Other Community-Based Government Operations;
- Critical Manufacturing;
- Hazardous Materials;
- Financial Services;
- Chemical; and
- Defense Industrial Base.
Consistent with these limits, the essential business workforces may continue operating so long as they comply with guidelines from the U.S. Occupational Safety and Health Administration and the Washington Department of Health. Among other recommendations, the guidelines advise employers to permit employees to work from home whenever possible, keep employees at least six feet apart, and implement appropriate cleaning and hygiene measures.
Washington State will not be implementing a “business pass or credentialing program” to confirm whether any particular business is essential or its particular operations permitted. Accordingly, employers should consult the Essential Critical Infrastructure Workers list on their own or with counsel to determine the extent to which they may continue operating.
With that said, on March 25, 2020, the Washington State Governor’s Office launched an online form that employers can submit to request clarification with respect to specific job roles or submit a request to be officially designated as an essential business under the Order. The Washington Department of Commerce has issued a news release with more information, and employers can visit this page for details and the form itself.
How Does the Order Affect Employers Operating Businesses Not Deemed Essential?
Effective midnight March 25, 2020, all non-essential businesses in Washington are required to cease operations except for basic minimum operations, defined to include those minimum activities necessary to protect inventory, physical plants and equipment, ensure security, process payroll and benefits, and facilitate employees working from home. Once again, employers should examine their workforce and carefully determine, alone or with counsel, which employees are essential to these functions.
In addition, the prohibitions in the Order on business activities do not apply to businesses consisting exclusively of employees or contractors performing activities at their home or residence, and who do not engage in in-person contact with clients. The Order also does not prohibit working from home, operating a single owner business with no in-person, on-site public interaction, or restaurants and food services providing delivery or take-away services, so long as proper social distancing and sanitation measures are established and implemented.
With Businesses Shutting Down, What Options Does an Employer Have for Its Employees?
Telework: Washington is encouraging non-essential businesses to continue to operate by allowing employees to work remotely from their homes. If employees are working remotely, we recommend a telecommuting policy to ensure continued compliance with wage and hour laws and a mutual understanding regarding employees’ responsibilities. For example, companies should ensure that non-exempt (eligible for overtime) employees are recording their time accurately, and all employees are following practices and procedures with respect to confidentiality and cybersecurity.
Furloughs: If employees are not working, employers can put them on “furlough,” meaning their hours and pay are reduced to zero. Employees may be permitted to use vacation, paid time off or earned sick time as appropriate. Washington employers cannot require their employees to exhaust their earned sick time. Whether an employee continues to receive benefits will depend on the terms of the employer’s benefit plans. Under certain circumstances, the Washington Employment Security Department has issued emergency rules relaxing the eligibility criteria for unemployment benefits to allow furloughed employees placed on standby by their employer to collect those benefits.
Layoffs: If employees cannot work, employers can also terminate their employment. Note that under Washington law, terminated employees need to be paid their final wages on their next regularly scheduled pay period. Also, terminating large numbers of employees may trigger notice requirements under the federal Worker Adjustment and Retraining Notification Act (WARN) for certain employers.
What Should We Do Next?
After determining whether their business operations are considered essential under the Order, employers should identify the minimum staff needed to continue to operate essential businesses on site. For non-essential on-site employees and non-essential businesses, companies should consult with legal counsel regarding effective telecommute policies and wage and hour and possible WARN obligations for any reduction in work hours or staffing levels.