What You Need To Know: Governor Inslee Announces Vaccination Requirement for State Workers and Statewide Indoor Mask Mandate
Following his announcements last week, Governor Inslee has now released proclamations detailing mask and vaccination requirements in Washington State. Here is what you need to know.
Indoor Mask Mandate
Proclamation 20-25.15 has been amended to require indoor mask-wearing for all individuals, both vaccinated and unvaccinated, except in limited circumstances. These changes took effect on August 23, 2021, and apply in all of Washington State. Key provisions include:
- Mask requirements are consistent with the State Secretary of Health’s face covering order, which outlines limited exemptions on the basis of medical necessity and age, and exceptions to facilitate communication, identification, or while eating and drinking.
- Businesses may not allow customers to enter or remain in an indoor space without a face covering, unless one of the exemptions or exceptions in the State Secretary of Health’s face covering order apply.
- Businesses must post signage in a prominent location visible to customers at each entry informing customers of the face covering requirement.
- Employees must wear a face covering at indoor worksites; however, an exception may apply for vaccinated individuals. The exception can be offered at the employer’s option. If an employer chooses to require face coverings for all employees regardless of vaccination status, it is permitted to do so. Employers may permit a fully vaccinated employee to work indoors without a face covering if the following specific circumstances are met:
- The exception is only allowed in areas not generally accessible to the public, and when no customers, volunteers, visitors, or non-employees are present. For example, vaccinated employees could be permitted to sit in a staff lounge to eat (we recommend with appropriate social distancing in place), but would have to wear masks if a vendor entered the room to refill a vending machine while they were eating. In another example, two vaccinated employees could attend an internal meeting without masks, but would need to put masks on if a client joined the meeting, even if that client was also fully vaccinated.
- Verbal assurances that an employee is fully vaccinated are not sufficient. To be able to use this exception, an employee is only considered “fully vaccinated” after providing the employer either (a) proof of vaccination; or (b) a signed document attesting to the employee’s fully vaccinated status. The document may be signed in hard copy or electronically. Note, however, that if the workplace is subject to Proclamation 21-14 requiring vaccination as a condition of employment, that physical proof of vaccination is required and a signed attestation will not satisfy that proclamation’s requirement.
- The exception is not allowed if face coverings are legally required for the specific worksite (such as, but not limited to, many healthcare settings) or are legally required under a stricter local mask-wearing order. Industry-specific guidance for businesses is available here.
- As discussed above, nothing in the Proclamation prevents a business from implementing requirements that exceed the requirements in the Proclamation. For example, a business could require face coverings in both indoor and outdoor areas of their workplace, or could decide not to make an exception to indoor mask requirements for individuals who are fully vaccinated.
Employer Notifications of COVID-19 Workplace Spread
On a topic less widely covered in the media, Proclamation 20-25.15 requires employers to notify their local health jurisdiction within 24 hours if they suspect COVID-19 is spreading in their workplace, or if they are aware of two or more employees who develop confirmed or suspected COVID-19 within a 14-day period. This reporting is different from and in addition to reporting requirements to the Department of Labor & Industries, which has different reporting requirements. Employers may need to make a report to their local health jurisdiction even in cases where a report to L&I is not required.
Mandatory Vaccination for State Agencies, Educational Settings, and Health Care Providers Effective October 18, 2021
A separate Proclamation, 21-14.1, outlines the details of the widely announced vaccine mandate. Here are answers to some of the frequently asked questions about the vaccine mandate.
Who does the mandate apply to? The vaccination requirement applies to workers at state agencies, in Educational Settings, and in Health Care Settings. These terms are defined broadly:
- “Worker” includes employees, on-site contractors, and on-site volunteers. While contractors and volunteers are only covered if they are “on-site,” the same is not true for employees, to whom the mandate applies whether the employee works on-site or remotely.
- “Educational Settings” include all public and private universities, colleges, community colleges; all public and private school districts, including charter and private schools; and all early learning and child care programs serving groups of children from multiple households, but not including “family, friend, and neighbor child care providers.”
- “Health Care Providers” and workers in “Health Care Settings” includes credentialed healthcare professionals, most long-term care workers, and workers in any public or private setting that is primarily used for the delivery of in-person health care services to people. The definition applies to hospitals and doctors’ and dentists’ offices, and also includes workers who provide health care services within a larger business that is not devoted to healthcare, so for example, pharmacists working in a drug store, even though other drug store employees are not included.
What is the requirement? Covered employees must be fully vaccinated by October 18, 2021 or else they may not work. Employers are prohibited from employing individuals who are subject to the mandate without proof that that they are fully vaccinated by that date. Limited exceptions are permitted on a case by case basis for accommodations based on disability and religion.
What is required for proof of vaccination? Proof of vaccination can be accomplished with presentation of any of the following:
- CDC COVID-19 Vaccination Record Card or photo of the card (both sides must be seen so that the date of full vaccination can be confirmed);
- Documentation of vaccination from a health care provider or electronic health record;
- Screenshot or printout of a state immunization information system record; or
- For an individual who was vaccinated outside of the United States, a reasonable equivalent of any of the above.
Which vaccines are accepted? Importantly, the Proclamation is not limited to the three U.S. FDA-authorized vaccines. A person is considered fully vaccinated against COVID-19 two weeks after the second dose of a two-dose vaccine or two weeks after the sole dose in a single-dose vaccine. Any vaccine that is authorized for emergency use or approved by the FDA or listed for emergency use or otherwise approved by the World Health Organization is acceptable. This means that in addition to the Pfizer, Moderna, and Johnson & Johnson/Janssen vaccines being dispensed in the United States, covered employers may also accept vaccinations from WHO-authorized vaccines such as the AstraZeneca and Sinopharm.
If an employee has already submitted self-attestation for proof of vaccination, do they have to submit proof of vaccination? Self-attestation is not sufficient to satisfy the vaccine mandate. Self-attestation is permitted in workplaces not subject to the vaccine mandate to enable a fully vaccinated person to forgo wearing a mask, as permitted by Proclamation 20-25.15 (see earlier in this article for additional details). Under the vaccination proclamation, employees must provide proof of vaccination and not only an attestation.
May employers set even stricter standards than the Proclamation? Yes. The Proclamation states specifically that public and private employers may implement requirements that exceed the requirements in the Proclamation. For example, an employer could decide to require vaccination of all employees, even those who are not included in the definitions in the Proclamation. An employer could also decide to require proof of full vaccination by an earlier deadline.
How will the mandate be enforced with government or other contractors? The Proclamation permits a state agency to delegate compliance to a contractor or to collect proof of vaccination from contractors itself. If the responsibility is delegated to a contractor, the contractor must fully comply with documenting proof of vaccination, consideration of accommodations, and must also submit a signed declaration to the state agency stating its compliance with the requirements, following the format outlined by statute.
What should an employer do about employee requests for accommodation or exemption from the vaccine requirement? Workers who would otherwise be required to be fully vaccinated are not required to get vaccinated against COVID-19 under the Proclamation in two circumstances: (1) if they are unable to do so because of a disability, or (2) if the requirement to be vaccinated conflicts with their sincerely held religious beliefs, practice, or observance. This does not mean that an employee simply has to request an exemption and cite disability or religious grounds. There are steps an employer must take on a case-by-case basis to decide whether to grant an exemption as an accommodation, and if so, to determine other aspects of the accommodation:
- Accommodation requests can be formal or informal. An employee does not need to use the phrase “reasonable accommodation” to trigger an employer’s obligation to explore accommodation options with the employee. An employer should engage in an interactive dialogue with the employee if the employee says anything that indicates that they cannot comply with the vaccine mandate, and can ask the general question “is there a reason that you are unable to get vaccinated?”
- Accommodations may not be based on personal preference or on dishonest grounds. The Proclamation prohibits workers from claiming such an exemption on false, misleading, or dishonest grounds, including by providing false, misleading, or dishonest information to their employer. It also prohibits an employer from granting an exemption from the vaccine requirement if the employer knows that the request is based on false, misleading, or dishonest grounds, or if the employer knows the request is based on the individual’s personal preference, as opposed to an inability to get vaccinated or conflict with a sincerely held religious belief, practice, or observance. If an employer is using an accommodation request form, the employer may wish to include a statement to this effect on the form along with a statement in which the employee attests that the information on the form is accurate. If the employer does not have a formal form, it may nonetheless want to notify employees of this aspect of the mandate, and ask them to attest to the accuracy of information provided to support their accommodation request. If an employer has reason to believe that an employee’s request is based on false, misleading, or dishonest grounds, we recommend consulting with a lawyer about how to respond to the request.
- For accommodation requests based on disability, employers must obtain from the individual requesting the accommodation documentation from an appropriate health care or rehabilitation professional stating that the individual has a disability that necessitates an accommodation and the probable duration of the need for the accommodation. For example, an employee who is undergoing chemotherapy treatment might need to wait until their treatment is complete and their white blood cell count rebounds before being vaccinated. An employee who is allergic to all three of the FDA-authorized vaccines might need an exemption until a vaccine that they are not allergic to becomes available.
- Upon receiving an accommodation request based on disability, the employer must engage in an interactive dialogue with the employee to determine whether the employer can grant the requested accommodation. The employer’s decision will ultimately depend on whether the exemption can be granted without imposing undue hardship on the organization and whether the lack of vaccination will pose a direct threat to the health of others. Additional guidance on these considerations can be found in the EEOC’s What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. You may also wish to consult with a lawyer for advice about the particular request you have received.
- For accommodation based on a sincerely held religious belief, employers must document that the request was made, and obtain a statement from the employee explaining the way that the vaccination requirement conflict with the individual’s sincerely held religious belief, practice, or observance. Employers should generally not question the validity of a belief once it is asserted by an employee. As the EEOC explains, “the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar. Therefore, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance. However, if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.”
- Upon receiving an accommodation request based on religious belief, the employer must engage in an interactive dialogue with the employee to determine whether the employer can grant the requested accommodation. The employer’s decision will ultimately depend on whether the exemption can be granted without imposing undue hardship on the organization. It is generally easier for an employer to deny an accommodation based on religion than to deny an accommodation based on disability because the “undue hardship” standard for religious accommodation requests is an easier standard for employers to meet than the “undue hardship” standard for disability accommodations. This means that it is often easier to deny an accommodation request based on religious grounds than one based on grounds of disability. Additional guidance on this considerations can be found in the EEOC’s What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. You may also wish to consult with a lawyer for advice about the particular request you have received.
- Reconsider accommodation decisions as circumstances change. An employer is not required to grant an accommodation indefinitely and may change a decision about an accommodation as time passes. The assessment of whether the accommodation is reasonable, whether it imposes undue hardship, or whether the unvaccinated person poses a direct threat to health in the workplace may change over time. Circumstances that change could be societal, such as if a new COVID-19 variant emerges, or if infection or hospitalization rates in your area change substantially. Circumstances could also change for the workplace itself, such as if a large volume of accommodation requests impose undue hardship because they would make scheduling difficult or impossible, would shift overly burdensome duties to a small number of employees, or other business needs cannot be met based on the effect on staffing availability.
Can an employee receive unemployment benefits if they leave their job because they do not comply with the vaccination requirement? Maybe. When an employee’s separation is the result of failure to comply with an employer’s requirement to become vaccinated, ESD will examine a number of factors and make a case by case determination on eligibility for benefits. However, simple refusal or personal preference is unlikely to result in an award of benefits; the Employment Security Department has stated that an employee who does not qualify for an accommodation and still does not comply with the vaccination requirement “would likely be denied” benefits.
This document is intended to provide you with general information regarding employer mandates. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Stokes Lawrence, P.S. attorney. This communication may be considered advertising in some jurisdictions. For assistance complying with the masking and mandatory vaccine proclamations or for help with other issues of COVID in the workplace, contact a member of Stokes Lawrence’s employment group.