Updated May 1, 2020
Employers face multi-faceted challenges as they manage the outbreak of COVID-19 and its effect on their workforce and business. Below we’ve answered frequently asked questions for employers and compiled key resources for employers to stay up to date on the current coronavirus outbreak.
Answers to Employer Frequently Asked Questions:
What special protections exist for high-risk employees in Washington State?
Governor Inslee issued Proclamation 20-46, which provides protections for high-risk employees by prohibiting all employers from failing to accommodate such employees to avoid risk of at-work exposure to COVID-19. High-risk employees include people 65 years and older and people with underlying medical conditions, particularly if not well controlled.
The Proclamation prohibits employers from:
- Failing to utilize all available options for alternative work assignments to protect high-risk employees, if requested, from exposure to COVID-19, including but not limited to telework, alternative or remote work locations, reassignment, and social distancing measures;
- Failing to permit any high-risk employee in a situation where an alternative work arrangement is not feasible to use any available employer-granted accrued leave or unemployment insurance in any sequence at the discretion of the employee;
- Failing to maintain all employer-related health insurance benefits for an employee who has exhausted their paid time off during the period of leave until the employee is deemed eligible to return to work;
- Taking adverse employment action against an employee for exercising their rights under the Proclamation that would result in loss of the employee’s current employment position by permanent replacement; and
- Applying or enforcing any employment contract provisions that contradict or otherwise interfere with the above prohibitions and intent of the Proclamation.
The Proclamation does not prohibit employers from:
- Hiring temporary employees, so long as it does not negatively impact the permanent employee’s right under the Proclamation to return to their employment position without any negative ramifications to their employment status;
- Requiring an employee who does not report to work under this Proclamation to give up to five days’ advance notice to the employer of any decision to report to work or return to work under this Proclamation; and
- Taking employment action when no work reasonably exists, such as a reduction in force; but if no work exists, employers shall not take action that may adversely impact an employee’s eligibility for unemployment benefits.
The Proclamation is in effect until at least June 12, 2020 and violation of the Proclamation may subject an employer to criminal penalties.
Which employers are covered under the Families First Coronavirus Response Act (FFCRA)?
The FFCRA applies to (1) certain public employers and (2) all private employers with fewer than 500 employees.
Employers of health care providers and emergency responders may choose to not to offer leave to their employees. Also, small businesses with fewer than 50 employees may be exempt from providing paid leave to employees dealing with school closures if doing so would jeopardize the viability of the business as a going concern. To learn more about the FFCRA, read here.
Does Governor Inslee’s Stay Home Stay Healthy Proclamation mean I have to close my business?
The Governor’s March 23, 2020 Stay Home Stay Healthy order requires non-essential businesses in Washington to close, with certain exceptions, including:
- Businesses may operate from home and employees may work within their home or residence if they can do so without in-person contact.
- Businesses which are deemed essential can stay open. Essential businesses are described generally in the Proclamation. Updated guidance about essential business operations can be found here. If a business wants to clarify whether it is an essential business or request inclusion as an essential business, it can complete an online form here.
- Restaurants and food services providing delivery or take-away may operate, so long as proper social distancing measures are maintained.
- Non-essential businesses must close, except they can continue to carry out minimum basic operations as defined in the Proclamation.
How do I know if my business is allowed to stay open or if I can have any workers work under Washington’s Stay Home, Stay Healthy Order?
Governor Jay Inslee issued the Stay Home, Stay Healthy Order on March 23, 2020. The Order directs all residents to stay home from midnight on March 25, 2020 through midnight on May 31, 2020 (unless extended further) except for essential activities or employment in essential business services. Employment in essential business services means an essential employee performing work for 1) an essential business as identified in the “Essential Critical Infrastructure Workers” list or 2) carrying out minimum basic operations for a non-essential business.
The list of “Essential Critical Infrastructure Workers” can be found here, but generally includes: healthcare/public health; emergency services; food and agriculture; energy; water and wastewater; transportation and logistics; communications and information technology, critical manufacturing, hazardous materials, financial services, chemical, defense industrial base, and other community-based government operations and essential functions.
Minimum basic operations under the Order are those minimum activities necessary to maintain the value of the business’ inventory, preserve the condition of the business’ physical plant and equipment, ensure security, process payroll and employee benefits, facilitate employees of the business being able to continue to work remotely from their residences, and related functions.
Businesses and employees that do not fit into these categories must not work or must work from home. Determining whether your workers or businesses fit into these categories may require assistance from your counsel for interpretation and the latest guidance.
What are the penalties for businesses which fail to comply with the Stay Home Stay Healthy Order?
On Monday, March 30, 2020, Governor Inslee announced a three-tiered compliance approach for businesses. The first tier is notification, education and warning, the second tier is formal enforcement action such as citations and suspension of permits or business licenses, and the third tier is the referral of complaints to the attorney general for civil or criminal prosecution.
The Governor also established a form for submission of suspected violations here.
How long will the Stay Home Stay Healthy mandate be in effect?
The prohibitions will remain in effect until midnight on May 31, 2020 unless extended beyond that date.
Can I still terminate or lay off employees, even with the enactment of the FFCRA and Governor Inslee’s Stay Home, Stay Healthy Order?
Yes. An employer’s right to terminate or lay off an employee has not, as of this writing, changed. An employer can terminate or lay off an employee because business has slowed and the employer has made the decision to reduce its workforce. It can also terminate employees for performance issues or other such reasons. Employers cannot, however, terminate or lay off an employee for a reason which would violate federal, state, or local anti-discrimination or anti-retaliation laws (including an employee’s request for leave related to COVID-19 and the recent protections in Washington for high-risk employees under Proclamation 20-46). Employers also should consider any applicable employment agreements or collective bargaining agreements which may affect their ability to terminate employees.
Can I put employees on standby (a temporary layoff) and what happens if I do?
Yes, you can put employees on standby. Standby is a temporary layoff status employers can elect instead of a permanent layoff. Standby allows employees to claim unemployment during their temporary layoff without the requirement to look for other work during the layoff. The temporarily laid-off employees need to remain available for any work their employer may offer while they are on standby. Standby is usually limited to eight weeks in a claim year, but under the Washington Employment Security Department’s new emergency rules, temporary shut-downs related to COVID-19 are considered extraordinary circumstances and grounds for an extension of the eight-week time limit. Employers who temporarily lay off their employees due to COVID-19 may be eligible to receive reimbursement of unemployment benefits instead of charging those benefits to the employer’s experience rating account if the employee is temporarily laid off as a consequence of COVID-19, the employer requests the employee be put on standby status, and the employee returns to the same employment he or she had prior to the temporary layoff. The new emergency measures have also waived the one-week waiting period for unemployment claims and have extended standby status to part-time employees.
If I decide to lay off employees, how do I comply with WARN Act requirements in light of COVID-19?
Employers who are typically subject to the federal WARN Act (i.e., those with 100 or more full-time employees, subject to certain caveats) must provide 60 days’ notice of an “employment loss” if there is a closure, layoff or furlough impacting 50 or more employees for six or more months. One exception to the 60 day notice requirement is for situations when the layoffs occur due to unforeseeable business circumstances. What constitutes an “unforeseeable business circumstance” is not defined in the Act, but business impacts from COVID-19 may qualify. The exception still requires the employer to provide as much notice as practicable, and a brief explanation of why the 60 day notification period cannot be met. Employers who believe they may be subject to WARN should consult with legal counsel to determine whether WARN is triggered and whether the exception applies, and also to ensure appropriate notices are provided even if a notice exception can be supported.
Can employees use their Washington sick/safe leave or their PTO to care for children when schools and daycares are closed due to COVID-19?
Yes. Washington’s sick/safe leave permits employees to use accrued paid sick leave if their child’s school or place of care is closed for a health-related reason, although employers cannot require employees to use this sick/safe leave. Also, the FFCRA requires most employers to provide certain paid leave, in addition to leave already offered, during absences due to school closure arising from COVID-19. Please see our article here for more information on FFCRA requirements.
What are other resources Washington State employers can turn to regarding employer concerns and obligations?
Local & Federal Resources:
- Governor Inslee’s “Stay Home, Stay Healthy” Order
- Governor Inslee’s “Stay Home, Stay Healthy” list of “Essential Critical Infrastructure Workers“
- Washington State’s Official COVID-19 site, maintained by the state Joint Information Center
- COVID-19 and the American Workplace, U.S. Department of Labor, Wage & Hour Division
- Families First Coronavirus Response Act: Questions and Answers, U.S. Department of Labor, Wage & Hour Division
- COVID-19 or Other Public Health Emergencies and the Fair Labor Standards Act Questions and Answers, U.S. Department of Labor, Wage & Hour Division
- COVID-19: Information for workers and employers, U.S. Department of Labor, Occupational Safety and Health Administration
- COVID-19: Workplace and Employer Resources & Recommendations, Washington State Department of Health
- Washington State Employment Security Department: for workers and businesses affected by COVID-19
- Trump extends Real ID deadline amid coronavirus crisis; REAL ID Frequently Asked Questions
- USCIS: Temporary Office Closure Extended until at least May 3, 2020
- King County Public Health Recommendations
- Centers for Disease Control and Prevention (CDC)
- Guidance from the EEOC created during the 2009 H1N1 situation
Ryan Swanson Articles & Alerts:
- White House Proclamation Suspends the Entry of Certain Immigrants to the U.S., Ryan Swanson Immigration Alert
- Premium Processing for All I-129 and I-140 Petitions Temporarily Suspended Due to the Coronavirus Pandemic, Ryan Swanson Immigration Alert
- DHS Provides COVID-19 Exceptions to I-9 Compliance, Ryan Swanson Immigration Alert
- U.S. Embassies and Consulates Cancel Visa Appointments Due to COVID-19 Outbreak, Ryan Swanson Immigration Alert
- USCIS Suspends In-person Services, Ryan Swanson Immigration Alert
- Canada Cancels All Routine Nonimmigrant Visa Appointments and Restricts International Travel, Ryan Swanson Immigration Alert
- COVID-19 Travel Ban Impacting Travel from Europe, Ryan Swanson Immigration Alert
- Impact of Coronavirus on Travel from China to U.S., Ryan Swanson Immigration Alert
- Ongoing Construction Projects Allowed to Restart with Safety Restrictions, Ryan Swanson Real Estate, Finance & Development Article
- COVID-19: Seattle Creates Protections for Small Business and Nonprofit Tenants, Ryan Swanson Real Estate, Finance & Development Article
- COVID-19 Impact on Construction and Development in Washington, Ryan Swanson Real Estate, Finance & Development Article
- What the Residential Eviction Moratorium Means for Washington Landlords and Tenants, Ryan Swanson Real Estate, Finance & Development Article
- Governor Inslee Issues Proclamation Providing Protections for High-Risk Employees, Ryan Swanson Employment Law Alert
- Employer Obligations Under the Families First Coronavirus Response Act, Ryan Swanson Employment Law Alert
- Governor Issues Additional Guidance Bulletin; Includes Important Guidance for Automotive Dealers, Ryan Swanson Auto Dealership Alert
- State Announces $5M Grant Program for Small Business, Ryan Swanson Business Alert
- COVID-19: CARES Act – Key Provisions for Small to Mid-sized American Businesses, Ryan Swanson Business Alert
- COVID-19: Resources for Washington Businesses, Ryan Swanson Business Alert
- COVID-19 & Your Automobile Dealership: Resources and Dealer FAQs, Ryan Swanson Auto Dealership Alert
- COVID-19: Options for Commercial Property Owners in Washington, Oregon, and California, Ryan Swanson Bankruptcy, Finance & Restructuring Alert
- President Trump Signs Coronavirus Aid, Relief and Economic Security Act (CARES Act) into Law, Ryan Swanson Bankruptcy, Finance & Restructuring Alert
- Small Business Bankruptcy and Receiverships, Ryan Swanson Bankruptcy, Finance & Restructuring Alert
- COVID-19: Options for Distressed Small Businesses in Washington, Oregon, and California, Ryan Swanson Bankruptcy, Finance, & Restructuring Alert
If you have questions, please feel free to contact any member of the Employment Rights, Benefits & Labor Group at Ryan Swanson.
This webpage is provided for general informational purposes only and does not constitute legal advice.