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.
Washington’s COVID-19 reopening guidance is constantly developing. As the state’s reopening plan continues to unfold, employers are encouraged to visit the governor’s website and consult knowledgeable counsel to ensure compliance with the most up-to-date requirements and guidance.
On May 4, 2020, Washington Governor Jay Inslee signed Proclamation 20-25.3, which outlines a phased approach to reopening Washington’s economy. After issuing Proclamation 20-25.3, the Office of the Governor issued a series of phase-specific, industry-specific guidance documents outlining what steps Washington businesses will need to take in order to reopen safely.
Phased Reopening Process
Through the Washington “Safe Start” plan, businesses and activities are slated to reopen in four phases, all requiring adequate social distancing measures and health standards, but with different and lessening restrictions in each phase. Each phase will last at least three weeks, with “data and metrics” determining progress from one phase to the next on a county-by-county basis throughout the state. Notably, the governor may adjust the phased timeline as the pandemic evolves. Further, many smaller counties have applied for, and been granted, a variance to proceed to Phase 2 early. This allows certain areas of the state to open even more businesses than is allowed statewide.1
For businesses referenced in each phase of the Safe Start plan, the state will issue “industry-specific guidance and safety criteria” to ensure safety and public health standards are maintained. Businesses are not authorized to open until the industry-specific guidance and safety criteria are issued.
During Phase 1, which is expected to last at least through May 31, 2020, and likely significantly longer for counties that have had large outbreaks, essential businesses remain open. Further, existing construction that meets “agreed upon criteria” and landscaping are permitted, as are auto, RV, and boat sales, car washes, and pet walkers. Retail operations are also permitted, but are limited to curbside pick-up orders only. Non-urgent medical and dental procedures are also permitted so long as they meet specific procedures and criteria.
During Phase 2, all components of Phase 1 will carry into the start of Phase 2. In addition, restaurants and taverns are permitted to resume limited dining, and in-store purchases at retail establishments are permitted with restrictions. While telework retains strongly encouraged, professional services and office-based businesses may resume in-office operations. Further, real estate, hair and nail, pet grooming, and domestic services may resume provided they follow the state’s industry-specific guidance.
General Reopening Processes
The Washington Department of Labor and Industries (L&I) issued General Requirements and Prevention Ideas for Workplaces to accompany the governor’s Safe Start plan, which apply across industries. L&I’s general requirements include that employers must ensure social distancing practices for employees; control customer flow; ensure frequent and adequate employee handwashing; ensure facilities and surface sanitation; and ensure that sick employees stay or be sent home if they feel ill. Employers must also provide “basic workplace hazard education” about coronavirus and how to prevent transmission in the language best understood by employees. While these general requirements do not mandate employer-provided face coverings or personal protective equipment, most of the governor’s industry-specific guidelines do. Further, under a Local Health Officer Directive issued by King County (where Seattle is located) on May 11, 2020, all individuals are required to wear face coverings when they are in indoor public settings or outdoor locations where they cannot maintain distancing of approximately six feet from another individual.
Selected Industry-Specific Guidelines for Phases 1 & 2
The governor’s Business Activity Guidelines for specific industries permitted to resume under the Safe Start plan in Phase 1 and 2 both reiterate and expand upon L&I’s general guidelines. Selected industry requirements are outlined below. However, employers reopening in Phase 1 and 2 should carefully examine the industry-specific guidance to ensure their practices closely adhere to the current guidelines.2
During Phase 1, “low-risk construction work”—existing construction projects that comply with job-site requirements and do not require workers to be closer than six-feet together—may resume. “Existing” means construction activity that is either needed to fulfill an obligation under a contract effective prior to March 23, 2020, or authorized by government-issued permit obtained prior to this date. Prior to commencing work, all contractors must establish for each worksite a comprehensive COVID-19 exposure control, mitigation, and recovery plan, and to post written notice to workers committing to adhere to the COVID-19 Job Site Requirements. Where six-foot distancing requirements cannot be maintained on a specific task, a hazard assessment and control plan must also be implemented.
Further, contractors must follow a 30-point list of worksite-specific safety requirements. L&I’s Division of Occupational Safety and Health (DOSH) may penalize any contractor that fails to follow the safety directives. Failure to meet requirements will result in DOSH imposing sanctions, including completely shutting down jobs. Specific requirements include, but are not limited to:
- Designating a COVID-19 site supervisor, unless on a residential job site with six or fewer people on the site;
- Providing workers with personal protective equipment (PPE)3—defined as gloves, goggles, face shields, and face masks appropriate for the job being performed, and ensuring that all employees not working alone wear a cloth facial covering;
- Conducting COVID-19 safety training, taking attendance, and posting the safety requirements;
- Monitoring worker health and symptoms, including screening all workers at the beginning of their shift by taking their temperature and asking them if they are symptomatic. Any worker with a fever (100.4 ° F or higher) or who reports or develops symptoms must be sent home;
- Informing employees of confirmed COVID-19 infections while maintaining confidentiality as required under the Americans with Disabilities Act (ADA); and
- Ensuring that all workers coming from states non-contiguous to Washington self-quarantine for 14 days prior to being eligible to work on a job site in the state.
During Phase 2, all construction, including new work, is allowed. This includes those activities for which social distancing cannot be maintained. Many of the same requirements from Phase 1 are continued, with a few either extended or discontinued. For example, the contractor’s site-specific exposure, mitigation, and recovery plan must now include a Job Hazard Analysis, including a list of all engineering controls and proper PPE for all job site activities. However, employers are no longer required to perform temperature testing, and may instead request that the employee self-test prior to reporting for work.
During Phase I, retail businesses may resume limited operations via curbside pick-up. Retail establishments must educate workers in the language they understand best about coronavirus and how to prevent transmission, and must ensure frequent handwashing and housekeeping. Further, retail employers are required to provide their employees with PPE as appropriate or required, and cloth facial coverings must be worn by every employee on the job site, unless their exposure dictates a higher level of protection. Similar to all other industries, retail establishments must designate a COVID-19 site supervisor, ensure adequate distancing between customers and employees alike, and screen employees for symptoms of COVID-19 at the start of the shift.
In addition, retail establishments must adhere to requirements specific to curbside retail operations. Notably these include, but are not limited to:
- Limiting in-store operations to those employees responsible for operations required for curbside delivery, and staggering shifts and breaks;
- Conducting transactions remotely;
- Designating employees to deliver products to the customer through curbside drop-off;
- Providing sanitizing products for workers and customers;
- Modifying return and exchange policies;
- Monitoring employee symptoms, including requesting that the employee take their temperature prior to their shift or taking their temperature when they arrive to work. Any worker who has a fever (100.4° F or above) or reports symptoms must be sent home;
- Informing employees of confirmed COVID-19 infections while maintaining confidentiality as required under the Americans with Disabilities Act (ADA); and
- Training employees on the worksite’s policies and how to prevent transmission.
During Phase 2, limited in-store retail operations may resume. However, there are significant limitations on customer traffic. Many of the training, distancing, sanitation, and screening requirements from Phase 1 are carried over. In addition, businesses must adopt a written procedure for in-store retail activity that is at least as strict as the Phase 2 retail-specific safety requirements. These include that businesses must limit the number of customers in the establishment to 30% of maximum building occupancy, not including employees. Retail businesses must also place distance markers outside the facility to maintain six-foot physical distancing requirements for customers waiting to enter, and must assign employees to monitor waiting customers. Similar markers must be placed directing the distancing of lines for checkout. Employers must also continue to ensure frequent sanitation, including in fitting rooms. Notably, any items used by customers in a fitting room and not purchased must be removed from active inventory and stored for no less than 24 hours. During this phase, malls and other shopping centers have an obligation to adhere to customer traffic management and sanitation guidelines and to ensure that their tenants adhere to curbside and/or in-store retail guidance. Importantly, all retail establishments must post signage at the entrance of their business “to strongly encourage” their customers to use cloth face coverings when in the store with their staff.
Vehicle and Vessel Sales
During Phase 1, vehicle/vessel dealerships must adopt a written procedure for sales at least as strict as the Phase 1 low-risk procedures outlined by the governor’s Phase 1 Resuming Vehicle and Vessel Sales COVID-19 Requirements, including utilizing remote sales tactics, and following sanitization, covering, and distancing practices. Additional procedures are required for in-water vessel sales. Similar to requirements for the construction industry, vehicle/vessel dealerships must develop and post a comprehensive COVID-19 exposure control, mitigation, and recovery plan, which must be made available for inspection by state and local authorities. Failure to meet this requirement may result in sanctions, including closure of the dealership.
Further, vehicle/vessel dealerships are required to comply with COVID-19 worksite-specific safety practices, which include designating a COVID-19 site supervisor and providing COVID-19 training. Employers must also provide PPE, as appropriate, for all employees, and must ensure every employee on the job site wears a cloth facial covering. Employers must also facilitate social distancing, including through arrangement of furniture and installing sneeze guards or other barriers, and must monitor employee health, including screening employees at the beginning of their shift, asking employees to take their temperature prior to reporting to work or taking their temperature upon arrival, and to report the development of any symptoms. Similar to the guidelines provided for other industries, employees who report symptoms or have a fever must be sent home.
During Phase 2, modified professional services may resume. This includes office-based occupations that typically serve a client base, such as accountants, architects, attorneys, engineers, financial advisors, information technologists, insurance agents, tax preparers, and other professional service occupations. These employer-owners may contract with employee-service providers to provide professional services. Similar to other industries, professional service employers are required to designate a COVID-19 site supervisor, ensure adequate employee distancing, training, screening, and sanitation practices, and must supply employees with PPE and facemasks as appropriate. Cloth face coverings must be worn by every employee not working alone on the job site unless their exposure dictates a higher level of protection. Further, all businesses must post signage at the entrance of the business encouraging customers to use cloth face coverings while inside.
Employers in this sector must also adhere to additional requirements, including but not limited to:
- Developing and posting at each location a comprehensive COVID-19 exposure control, mitigation, and recovery plan. A copy of the plan must be available at the location and available for inspection by state and local authorities. Failure to meet posting requirements will result in sanctions, including the location being shut down;
- Promoting adequate distancing through arrangement of furniture, reserving entry to front entrances, capping guest occupancy, scheduling lunch and rest breaks in shifts, and limiting business travel to one person per vehicle unless part of the same household;
- Ensuring adequate sanitation, including by providing abundant soap, running water, and hand sanitizer, posting required hygienic practices, and frequently cleaning and disinfecting high-touch surfaces at locations and in offices; and
- Implementing a sick employee plan, including screening all “employee-service providers” for symptoms, asking them to take their temperature at home or have their temperature taken when they arrive, and sending employee-service providers home who report symptoms or have a fever. If an employee-service provider is confirmed to have COVID-19, the employer should inform employee-service providers who have been in close contact with the individual but maintain confidentiality as required under the ADA.
Restaurants and taverns are not permitted to conduct dine-in service until Phase 2. Similar to guidelines provided for other industries, restaurant and tavern owners must adopt a written procedure for dine-in service that is at least as strict as the state’s guidelines. Bar seating and buffet and salad bars are prohibited. Further, guest occupancy must be capped at 50% of the maximum building occupancy or less, as determined by the fire code. Outdoor seating must be similarly capped, but does not count toward the building occupancy limit. Further, tables must be arranged to ensure at least six feet of distance between diners, and are capped at five guests or fewer. Hand sanitizer should be available at entry for all staff and patrons (supply availability permitting). Single-use menus are required and any condiments left on the table must either be single-use or sanitized after each use. Employers must also minimize the number of staff serving any given table.
Similar to other industries, restaurant and tavern employers are required to designate a COVID-19 site supervisor, ensure adequate employee distancing, training, screening, and sanitation practices, and must supply employees with PPE and facemasks as appropriate. Cloth coverings must be worn by every employee not working alone on the job site unless their exposure dictates a higher level of protection. Further, all businesses must post signage at the entrance of the restaurant or tavern encouraging customers to use cloth face coverings while inside.
All issues regarding worker safety and health are subject to enforcement action by DOSH. On May 26, 2020, L&I issued emergency rules regarding enforcement that take effect immediately. The rules authorize L&I to cite businesses for being open or for operating in a way that is purposefully defying the phased-in approach. If L&I finds a business to be in defiance of the governor’s Stay Home, Stay Healthy order, the business will be informed and directed to close or adjust operations immediately. L&I’s guidance states that if a business fails to do so, the noncompliant business could face a workplace safety citation carrying a fine of $10,000 or more. In addition to contacting businesses regarding allegations of non-compliance, L&I’s guidance indicates the agency will be performing in-person spot checks on some businesses to ensure they are complying with the requirements. Industry-specific guidelines may provide for additional penalties for non-compliance. Further, Guidelines for Enforcement of Governor Inslee’s COVID-19 Proclamations indicate businesses that continue to decline to follow the proclamation could be subject to criminal charges and/or Consumer Protection Act violations.
Employer Risks and Recommended Practices
While the state’s phased reopening is a positive development, businesses permitted to participate in these initial phases should be aware of risks beyond the inherent health and safety concerns outlined in state and local requirements.
Employee Hesitation to Return to Work
Even if an employer is ready and able to reopen under the Safe Start plan, employees may be reluctant to return to work for fear of COVID-19 exposure. Under a proclamation that is in effect until 11:59 p.m. on June 12, 2020 (unless rescinded or extended), “high-risk” employees may be entitled to alternative work assignments or other protections.4 Employees who do not feel comfortable returning to work and are not defined as “high risk” may still be entitled to leave or other accommodations or eligible for unemployment benefits, depending upon the circumstances—for example, if they live with someone or are in contact with family members who are considered to be “high risk,” or feel the workplace is unsafe due to the employer’s failure to follow federal, state, or local directives.5
Nearly all employees of businesses within King County (encompassing Seattle) are currently required to wear, at a minimum, a cloth face covering. Further, based on industry-specific guidance issued thus far, most employers will be obligated to provide cloth face coverings as the state progresses through the phased reopening. If procedures and protocols regarding the distribution and donning of face coverings are not already specifically required, employers should consider developing them. To the extent an employer is required or elects to provide face coverings, it should be prepared to address reasonable accommodation issues, especially medical conditions that impact fit, and for employees who have respiratory issues or hearing loss.
Monitoring Employee Health
Employers should establish a protocol for the temperature check process and apply it consistently to all employees to avoid any inference of discrimination.6 There may also be wage and hour implications if an employer requires employees either to undergo temperature checks at work or to take their own temperature before reporting to work.
Employers should also be prepared to deal with issues surrounding employees who must be sent home as a result of reporting symptoms or having a fever. Employees who go home due to COVID-19 symptoms, whether voluntarily or pursuant to an employer directive, will likely be entitled to use accrued but unused paid sick and safe time. If the employee tests positive for an infection, the employer needs to walk a fine line between informing individuals with whom the employee may have come in contact that they might have been exposed, and preserving the employee’s right to confidentiality under the ADA.
Some of the Business Activity Guidelines required businesses to maintain logs of customer contact information to facilitate contact tracing in the event of COVID-19 exposure. The details of those requirements have been deleted from the guidelines and are superseded by a memorandum from the governor dated May 15, 2020. The memorandum provides that customers are not required to provide businesses with their contact information. Businesses must maintain a customer log for those who voluntarily provide contact information but should not condition service on a customer’s willingness to provide their contact information. The log is to be used only to alert individuals if they have been exposed to COVID-19, and not for other purposes such as sales and marketing. In the event of exposure, the log is to be provided to public health officials, who will conduct contact tracing to notify exposed individuals, explain the risk, answer questions, and provide resources. If the log is not used within 30 days, it will be destroyed. The state provides a template log businesses may use to collect customers’ contact information.
Employers should evaluate whether their company qualifies for reopening under the currently applicable Safe Start phase in the counties where their operations are located. Businesses that intend to reopen should take immediate steps to implement a COVID-19 plan, and ensure compliance with any applicable requirements. Further, employers should consult knowledgeable counsel to ensure they are prepared to implement site-specific infectious disease and safety guidelines in compliance with local, state, and federal antidiscrimination and wage and hour laws.
1 At the time of publishing, a total of 24 counties have applied and been approved for variances advancing them to Phase 2 of the Safe Start plan: Adams, Asotin, Columbia, Cowlitz, Ferry, Garfield, Grant, Grays Harbor, Island, Jefferson, Kittitas, Lewis, Lincoln, Mason, Pacific, Pend Oreille, San Juan, Skamania, Spokane, Stevens, Thurston, Wahkiakum, Walla Walla, and Whitman. Clallam, Kitsap, and Klickitat counties are eligible to apply for a variance to move to Phase 2. The application from Clark County remains on pause due to an outbreak investigation. The state provides a map outlining counties and their status.
2 At time of publishing, the governor also issued industry-specific Phase 1 guidance on car washes, golf, outdoor recreation, pet walking, landscape services, non-urgent medical and dental services, outdoor maintenance, and spiritual drive-in services. The governor also issued specific Phase 2 guidance on additional industries.
3 Note that while the governor’s industry-specific directives include face shields and face masks in the definition of “PPE,” the Department of Labor, Occupational Health and Safety Administration (OSHA) has advised that face coverings are not considered PPE subject to formal workplace health and safety standards.
4 See Ryan Hammond and Goldie Davidoff, Washington State Governor Issues Proclamation Granting “High-Risk” Employees Additional Protections, Littler ASAP (Apr. 16, 2020).
5 See Emilie Hammerstein and Michelle Barrett Falconer, The Next Normal: A Littler Insight on Returning to Work – Handling Concerns about Hesitant or “High-Risk” Employees, Littler Insight (Apr. 30, 2020).
6 See Kwabena A. Appenteng, Philip L. Gordon, Zoe M. Argento, and Anna Park, The Next Normal: A Littler Insight on Returning to Work – Privacy and Data Security Implications of Employee Screening, Littler Insight (Apr. 27, 2020).