High-Risk Employees—Still Protected, But Medical Coverage Requirement Lifted

Related Practice: Employment

Early in the pandemic, Governor Inslee issued proclamations affording employees at heightened risk for severe illness or death from COVID-19 certain workplace protections. These protections have been extended more than once, and most recently with a Proclamation on April 8, 2021, with changes effective on April 9, 2021.

The most recent proclamation maintains all but one of the protections as long as the state of emergency remains in effect. Significantly for employers of workers who have been on extended leave from work, employers are no longer required to maintain medical benefits; however, the proclamation does require that employers give an affected employee at least 14 days’ advance written notice of a planned change. The changes also allow employers to request medical verification from an employee who is claiming protection under the proclamation.

After April 9, 2021, employers continue to have the following obligations:

• If a high-risk  employee asks, an employer must “utilize all available options for alternative work assignments” to prevent exposure, including but not limited to telework, alternative or remote work locations, reassignment, and social distancing measures.”
• If an alternative work arrangement is not feasible, an employer must allow the employee to use any available accrued leave or unemployment insurance benefits in any sequence, at the employee’s discretion.
• Employers may not take adverse action against an employee for exercising their rights under the Proclamation that would result in loss of the employee’s current position by a permanent replacement. An employer may hire a temporary replacement or may increase other employee’s hours to cover the high-risk employee’s shifts, but the employer must reinstate the worker when the worker is ready to return to work. Employers may require up to five days’ advance notice of the worker’s decision to return to work. When the permanent employee returns to work, they may not suffer any negative ramifications to their employment status. For example, the individual’s seniority cannot be diminished because of a temporary leave or layoff because they were unable to work due to concerns about exposure.
• If work no longer exists for the worker when they want to return to work, for example in the case of a reduction in force, the employer may not take any action that may adversely impact an employee’s eligibility for unemployment benefits.

After April 9, employers are permitted to:

• Require medical verification from an employee who is claiming protection as a high-risk worker. Medical verification can include consideration of the employee’s medical condition, vaccination status, and the particular circumstances of their job or workplace.
• Terminate (or stop maintaining) employer-related health insurance benefits, unless the employee is entitled to ongoing coverage such as under the FMLA, a collective bargaining agreement, or another specific condition of that worker’s employment. If an employer intends to stop or change coverage that was previously being maintained for a high-risk worker who otherwise would not have retained coverage, the employer must give 14 days’ advance written notice of the change, and the change cannot take effect until the month after the month in which the 14-day notice lapses. For example, notice would need to be given no later than April 16 for health insurance benefits to terminate in May, and notice would need to be given no later than May 17 for health insurance benefits to terminate in June.

Additional discussion of the earlier proclamations related to high-risk workers is available in our earlier article here. 

Read the full text of the April 8, 2021 Proclamation here.

If you have questions regarding how these changes may impact your business, contact a member of the Stokes Lawrence Employment group.