Washington – COVID-19 Incident Reports, Workers’ Comp, Wage and Leave Issues

Krishna Balasubramani | Sather Byerly and Holloway, Oregon and Washington Employment Law, Workers Compensation, Longshore, and OSHA Defense AttorneysWith the recent news of Coronavirus (COVID-19) in Washington, we want to ensure everyone understands the guidelines for incident reports, workers’ compensation claims, and other employment-related concerns. We have created a Q&A to cover many questions Washington employers may have on this confusing and pressing issue.

 

When should an OSHA Injury and Illness incident report be filed?

If an employer is aware of an exposure or an employee reports an exposure to a virus, this should be documented as a work incident. While the common cold and flu is exempt from OSHA recordkeeping requirements, COVID-19 is a recordable illness. OSHA COVID-19 Standards

Employers should file an incident report if either:

  1. An employee has tested positive for COVID-19; or
  2. The employee was exposed at work to an individual who tested positive for COVID-19.

Further, employers must report to the Division of Occupational Safety and Health (DOSH) the death or in-patient hospitalization of any employee due to an on-the-job injury by calling 1-800-423-7233 within 8 hours. L&I Report of Accident

 

When should a workers’ compensation claim be filed?

A Washington Labor & Industries (L&I) claim is typically initiated by the filing of a Report of Accident (there are different forms for self-insured employers). Typically, a workers’ compensation claim will be filed when either of these events occur:

  1. The employee asks to file a workers’ compensation claim or
  2. The employee seeks medical treatment or testing for COVID-19 and there was a suspected exposure at work.

 

Will the L&I claim be accepted?

Washington L&I has put out guidance that an employee and treating provider should file a claim if:

  1. There is an increased risk or greater likelihood of contracting the virus due to the worker’s occupation;
  2. If not for their job the employee would not have been exposed to the virus or contracted the condition; or
  3. The employee can identify a specific event or source of exposure to the new coronavirus at work.

L&I will accept claims for health care employees and first responders who are quarantined.

For others, L&I will consider whether the employee met the above criteria and whether the employee was quarantined by a public health officer or physician because of that exposure. L&I is taking the position that when the contraction of COVID-19 is incidental to the workplace or common to all employment (such as an office employee who contracts the condition from a fellow employee), a claim for exposure to and contraction of the disease will be denied. If a claim is for probable exposure and the above criteria are met, the claim will be allowed for the quarantine period regardless of whether the employee actually contracted COVID-19.

For accepted claims, time loss payment would be paid during the quarantine period (less the first three days) and the medical testing would be paid under the claim. L&I COVID-19 Common Questions

 

Can an employer ask an employee to leave work or stay home if they show symptoms of acute respiratory illness?

The Center for Disease Control (CDC) is recommending separating sick employees who appear to have acute respiratory illness symptoms (e.g. coughing, shortness of breath) if and when such employees arrive at the workplace or become sick during the workday. The CDC is also encouraging employers to determine whether flexible worksites and/or hours are an option. CDC Guidance – Business Response In reliance on these CDC recommendations, the Equal Employment Opportunity Commission (EEOC) states it is not a disability related action if an employer sends employees with influenza-like symptoms to leave the workplace during a pandemic. EEOC Guidelines

Employers should be careful not to run afoul of federal and Washington discrimination laws prohibiting employers from singling out people of a specific protected class, for instance race, sex, age, color, religion, national origin, disability, union membership or veteran status. Employers should be sure a factual basis exists for a decision to exclude someone from the workplace.

Washington’s Paid Sick Leave laws still apply if the employee is sick, for preventive medical care, and also if the employee’s places of business is closed by a public health official for any health-related reason. This means if an employee is sent home because they appear to have acute respiratory illness symptoms, the employee is probably entitled to paid sick leave. L&I Paid Sick Leave

L&I is also encouraging employers to continue to pay employees who are quarantined after being exposed to COVID-19. Governor Inslee’s COVID-19 Health Employees-First Responders Announcement

 

Can an employer ask an employee to leave work or stay home if they have traveled to an impacted region or been exposed to someone with COVID-19?

OSHA recommends that to protect the safety of employees, employers should implement policies that will result in the “prompt identification and isolation of potentially infectious individuals.” OSHA has also indicated that employers may take action with regard to high-risk individuals, which includes those who have traveled to impacted areas or those who have been exposed to the illness.

Employers should be careful not to run afoul of federal and Washington discrimination laws prohibiting employers from singling out people of a specific protected class, for instance race, sex, age, color, religion, national origin, disability, union membership or veteran status. Employers should be sure a factual basis exists for a decision to exclude someone from the workplace.

Maintaining a safe workplace as it pertains to COVID-19 requires keeping up with evolving guidance from the health regulatory authorities. The CDC’s recommendations with respect to travel to impacted areas can be found here. OSHA has released “Guidance on Preparing Workplaces for COVID-19,” describing “lower exposure,” “medium exposure,” and “high or very high exposure” risk occupations and what precautions employers can take with respect to protect employees at each level.

For those employees identified as having potential exposure, an employer can, and in certain cases must, direct those employees to work from home or not work during the incubation period. Employees who do not want to provide information about travel or potential exposure could also be asked to work from home or not work until it is determined safe for the them to return to work.

 

How should employers handle situations where employees do not report to work due to sick family members?

The CDC is also advising employers to encourage sick employees to stay home and to ensure employer sick leave policies are flexible and to permit employees to stay home to care for a sick family member. CDC Guidance – Business Response

The Family Medical Leave Act (FMLA) and Washington’s Paid Family Medical Leave (WPFML) still apply if both the employer and employee meet the qualifications for these respective laws. Eligible employees may apply to the WA Employment Security Department (ESD) for WPFML benefits when on leave due to their own or a covered family member’s serious health condition. Employees can be directed to this website for further information. Washington Paid Leave

 

What legal protections are available for asymptomatic employees who self-quarantines?

If employees choose to self-quarantine, FMLA and the Paid Family Medical Leave laws apply if both the employer and employee meet the qualifications for each law. The employer’s human resource, employee handbook, and other similar leave policies may also apply.

Washington’s Employment Security Department has created a comparison guide that addresses most of the common scenarios employers may face and the state benefits that may apply. This chart can be found here: WA ESD Scenarios and Benefits

Employees who are absent due to concern over becoming infected with COVID-19 may also be protected under the NLRA and/or OSHA. Under the NLRA, nonsupervisory employees may have the right to refuse to work in conditions they believe to be unsafe. Similarly, employees may refuse an assignment that involves “a risk of death or serious physical harm” if (1) the employee has “asked the employer to eliminate the danger and the employer failed to do so”; (2) the employee “refused to work in ‘good faith’” (a genuine belief that “an imminent danger exists”); (3) “[a] reasonable person would agree that there is real danger of death or serious injury”; and (4) “[t]here isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.”

While a generalized fear of contracting COVID-19 is not likely to justify a work refusal in most cases, employers may want to conduct a thorough review of the facts before any disciplinary action is taken against an employee who refuses to perform his or her job for fear of exposure to COVID-19.

 

Must employers keep paying employees who are not working due to quarantine, office closure or choose to stay home out of fear of infection?

Employers are required to pay at-will nonexempt employees only for time worked under the Fair Labor Standards Act (FLSA). Thus, at-will nonexempt employees directed by their employer not to report to work and not to work from home generally need not be paid. Those employees may be permitted or entitled to use accrued paid time off, including paid sick leave as discussed below.

Exempt employees who work part of the week must be paid for the entire workweek unless paid sick leave or PTO may be substituted if the absence is initiated by the employer. If an exempt employee initiates an absence, the employer may only dock the employee for full-day absences.

However, Washington Sick Leave is available in the event of closure of the employee’s place of business, or the school or place of care of the employee’s child, by order of a public official due to a public health emergency; a determination by a lawful public health authority or a health care provider that the presence of the employee or the family member of the employee in the community would jeopardize the health of others; or the exclusion of the employee from workplace under any law or rule that requires the employer to exclude the employee from the workplace for health reasons. Employees who are not sick or caring for a sick family member, who are unable to work remotely, and who choose to stay home as a preventative measure may not be entitled to sick pay.

Employers should look to the terms of any existing collective bargaining agreements, employment contracts or disability policies in place to determine whether any additional protections apply.

In addition, Washington employees may be entitled to unemployment compensation during closures or other periods away from work necessitated by COVID-19. WA ESD Scenarios and Benefits

 

What can employers share with other employees about suspected or confirmed cases of COVID-19?

The CDC is recommending that if an employee is determined to have COVID-19, employers should inform fellow employees of their possible exposure to the Coronavirus in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). Employees exposed to a co-worker with confirmed Coronavirus should refer to CDC guidance for how to conduct a risk assessment of their potential exposure. CDC Guidance – Business Response

 

Are there specific OSHA standards for COVID-19?

As per the CDC, at this time, there is no specific Occupational Safety and Health Administration (OSHA) standard covering the Coronavirus. However, some OSHA requirements may apply to preventing occupational exposure to the Coronavirus. OSHA has more information on how to protect employees from potential exposures to the Coronavirus. OSHA COVID-19 Standards

 

Are there special circumstances for health care employees and first responders?

On March 5, 2020, Governor Jay Inslee and Joel Sacks, the director of L&I, announced that L&I is changing its policy for health care employees and first responders who are quarantined by a physician or public health officer. L&I will now provide benefits to these employees while they are quarantined after exposure to COVID-19 while on the job. This expanded coverage is effective immediately and covers eligible employees already under quarantine. Benefits can include medical testing, treatment expenses, and time-loss benefits for those unable to work due to illness or quarantine. There is also guidance from the CDC on the exposure category and potential quarantines. CDC Guidance – Risk Assessment

 

Are there additional resources for employers to consult on COVID-19 issues?

Maintaining a safe workplace as it pertains to COVID-19 requires keeping up with evolving guidance from the health regulatory authorities.

This guidance can be found at the following websites:

 

If you have further questions please call Megan Vaniman – 503-595-6107 – mvaniman@sbhlegal.com or Krishna Balasubramani – 503-412-3104 – kbalas@sbhlegal.com or another SBH attorney