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March 2020

Washington Proclamation by the Governor 20-25: Amending Proclamation 20-25: "Stay Home - Stay Healthy"

March 25, 2020;
Updated March 29, 2020 to reflect new guidance from the U.S. Department of Labor

What the Proclamation Says – and Doesn’t Say

On March 23, 2020, Governor Jay Inslee, issued an Amended Proclamation 20-05, “Stay Home- Stay Healthy” (the “Proclamation”) in Washington State’s continued fight against the coronavirus disease 2019 (“COVID-19”). Governor Inslee stated that this Proclamation was necessary because of the “continued worldwide spread of COVID-19, its significant progression in Washington State, and the high risk it poses to our most vulnerable populations.” The Proclamation becomes effective on Wednesday, March 25, 2020, at midnight and will remain in effect until midnight on April 8, 2020, unless further extended beyond this date.  The Proclamation prohibits all Washington residents from leaving their residence except to (1) conduct or participate in essential activities and/or (2) for employment in essential business services.  This Proclamation does not apply to individuals who are not safe or become unsafe in their residence due to domestic violence, or to homeless individuals. 

The Proclamation defines essential activities as:

 (1) Obtaining necessary supplies and services for family or household members and pets, such as groceries, food and supplies for household consumption and use, supplies needed to work from home, and to maintain a safe and sanitary home or residence;

(2) Engaging in activities essential for the health and safety of family, household members and pets, such as seeking medical services and obtaining medical supplies or medication;

(3) Caring for a family member, friend, or pet in another household; and

(4) Engaging in outdoor exercise activities so long as social distancing practices are used (i.e., no group/team sports).

The Proclamation identifies what constitutes as an essential businesses in the list of “Essential Critical Infrastructure Workers.” Although identified as essential, these businesses are prohibited from operating under this Proclamation unless they establish and implement social distancing and sanitation measures established by the Department of Labor. The Proclamation also excludes employees or contractors performing business activities from their home so long as they do not engage in person-to-person contact with clients.

The list of Essential Critical Infrastructure Workers can be found here.  Please review to confirm whether your employment position is identified as essential. 

This Proclamation does not prohibit working from home, operating a single owner business with no in-person, on-site public interaction, or restaurants and food series providing delivery or take-away services, so long as proper social distancing and sanitation measures are established and followed.

Violators of this Proclamation shall be guilty of a gross misdemeanor pursuant to RCW 43.06.220 (5).

The complete Order can be found here.

Changes to Your Workforce

Whether or not your business is deemed “essential,” you may be considering reduction in your workforce either for employee safety or in response to this unforeseeable economic impact of the pandemic. Below is an overview chart of potential options for Washington employers. You should consider carefully all reduction in force options to determine which one best fits your needs.  Whether notice is legally required or not, we recommend all employers provide written notice to employees of their decision including an explanation of the rationale and assurance that these measures are only being taken in response to the pandemic and with the ultimate goal of returning to business as usual in the near future.  Demonstrating this goodwill toward your employees during this stressful time will garnish the trust and dedication you need from your employees when rebuilding your business.

      OPTION

DESCRIPTION

IMPORTANT INFORMATION FOR

WA EMPLOYERS

  Furlough

A form of temporary layoff that may consist of a complete stoppage of work or reduced work hours over a period of time.  Those on furlough remain employed and continue to receive healthcare benefits.

§  Advise exempt employees they must not work during the furlough period. If exempt employees work for only ten minutes in a week, they would be entitled to a week worth of income.

§ Consider maintain control over employer issued mobile devices and computers, or cutting off access to company email to ensure no work is being done by employees during the furlough period.

§ Under the emergency fund managed by Employment Security Department, during the coronavirus pandemic employees may apply for unemployment benefits if furloughed, so long as any hours of work are reduced enough to meet the eligibility requirements for partial unemployment benefits.

§ During this pandemic the Families First legislation employees may be entitled to the federal sick pay if the furlough is due to a state issued stay at home order. Furloughed Washington employees would be entitled to federal paid sick leave, effective April 1, provided the Proclamation is still in effect.

Temporary Lay-Off

An employer plans to rehire the laid off employees.

§ Employment Security Department has waived its job search requirement (a/k/a “standby”) for workers who plan to be rehired by employer after the pandemic is over.

Permanent Layoff /Termination

A permanent layoff is the removal of an employee from the workforce without any guarantee of returning to work.

 

A termination is a complete and permanent separation of employment.

§ If it is a mass layoff of 100 or more employees then notice required under the federal WARN Act.

§ Recommended that final pay be paid to the employee on last day of work.  Under WA law, the employee may receive final pay at the next payroll date following the termination,.

§ PTO/vacation time does not have to be paid out upon termination unless required by the company employment policy, employment contract, collective bargaining agreement, or by pattern of practice.

§ Washington employer’s not required to pay out sick leave at termination.

§ Provide timely notice regarding COBRA benefits.

Partial Employment

Employers who need to operate on a less-than-full time basis.

§ Employment Security Department will waive the job search requirement during this pandemic so long as employee has been hired to work full-time; employee must return to at least one week of full-time employment within a 4 month period; and employee must work at least 16 hours per week.

Reduction in Pay

Reducing an employee’s hourly rate or prospective salary

§ Employer may reduce non-exempt employee’s pay so long as it does not result in the employee being paid less than the state  or local minimum wage ($13.50 WA; $15.75 Seattle).

§ Exempt employees may have their salary reduced but exempt employees must have a minimum salary of ($684/week ) to maintain exempt status.

§ If exempt employee’s reduction falls under the salary base line the employee will be transitioned to non-exempt and will be paid overtime if works more than 40 hours a week.

Work Remotely

An employee is permitted to work remotely (out of the office) generally by accessing employer files through a virtual desktop.

§ Unless provide by employer, must reimburse employee for such expenses as home internet, cell phone usage, printer ink, paper and other relevant supplies.  May request proof of incurred expenses.

§ Ensure through clear directives that non-exempt employees take and record rest breaks and meal periods.

§ Consider monitoring non-exempt employees work-related computer usage to ensure that the non-exempt employee is  being paid accurately for hours worked. 

§ Direct the non-exempt employee not to work overtime without permission from supervisor/manager.


What Should You Do?

With many employers facing the difficult decision of whether to furlough or lay off employees, the critical question is the expense associated with each choice.  If you have a generous vacation policy, and many tenured employees with banks of hours, it may be more expensive to lay off employees because you may be required (depending on your employment policy) to pay out all earned vacation. If you furlough employees, you must maintain benefits and pay sick leave under the federal paid sick leave program. You may consider layoff or furlough of some employees and reduction in hourly pay or salary for others.  However, if you are deemed to be a non-essential employer and you fully anticipate your business reopening after the pandemic then it may make the best business sense to put your employees on furlough to immediately stop the labor costs and then you will have a labor force who is familiar with the business when it is time to re-open.  These are not easy decisions and you should consider all scenarios.

Reduction in Salary

A predetermined regular salary reduction, for a bona fide business reason (such as the pandemic), and not related to the quantity or quality of work performed, will not result in loss of an employee’s exempt status, as long as the employee still receives the minimum salary requirement of $684 weekly.

You may decide that because the future of your business is uncertain due to the pandemic, the loss of exempt status for employees is not important.  This means that if you reduce salary and later are sued by the employee claiming he/she is now non-exempt and is due unpaid overtime and/or penalties for or missed meal or rest periods, you may not be able to claim that employee was exempt.

If you decide to reduce an exempt employee’s salary, rather than lay that person off completely, keep in mind the following: An employer must pay an exempt employee the full predetermined salary amount for any week in which the employee performs any work without regard to the number of days or hours worked. However, there is no requirement that the predetermined salary be paid if the employee performs no work for an entire workweek. Deductions may not be made from the employee's predetermined salary for absences occasioned by the employer or by the operating requirements of the business. If the employee is ready, willing, and able to work, deductions may not be made for time when work is not available.

That said, if yours is an “essential” business and remains open, and your employees can be put to work, an exempt employee who elects to stay home due to the pandemic and does not perform any work on that day (unless working remotely), is considered absent for personal reasons and need not be paid for that day. Deductions from salary for absences of less than a full day for personal reasons or for sickness are not permitted. If an exempt employee works any portion of a day, there can be no deduction from salary for a partial day absence for personal or medical reasons.

If you choose to lower salaries, you may implement the change as of the next payday.  We also suggest that you inform the employee in writing with a clear explanation that the reduction is due to COVID-19, and without the reduction, the employee could be subject to layoff. 

Washington Paid Sick Leave

All non-exempt Washington employees (full-time, part-time, temporary, and seasonal) are entitled to accrue one hour of paid sick leave for every 40 hours worked, including overtime. There is no cap on the number of hours accrued in a one year period.  Paid sick time will not be accrued when the employee is not working and/or is using paid sick leave time, vacation time, or any other paid or unpaid leave.  The rate of the paid sick leave is at the normal hourly compensation. 

Should your business shut down because it is non-essential and you do not lay off the employees, they would be entitled to use their earned and accumulated paid sick leave.  Employees would also be able to use their paid sick leave if the employee becomes sick (with the coronavirus or any other illness), or is taking care of a family member.

New Federal Sick Leave Law

The Families First Coronavirus Response Act ("FFCRA") becomes effective April 1, 2020.

  • Employers of up to 500 employees (see below for calculation method) must provide 80 hours of paid sick leave for full time employees (average hours worked over two weeks for part time) if there is work for the employee available and the employee is unable to work (or telework) because:
  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.  (This includes any government order directing people to remain at home unless they work for an essential business);
  2. The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. The employee is caring for an individual who is subject to an order as described in subparagraph 1 above or has been advised as described in paragraph 2 above; or
  5. The employee is caring for a child of such employee if the school or place of care for the child has been closed, or the childcare provider for the child is unavailable, due to COVID-19 precautions.
  • If your business closed before or after April 1 due to lack of business, or if required to close pursuant to Federal, State or local directive, sick leave is not due.
     
  • Intermittent sick leave is permitted with the consent of the employer (it is not required).
     
  • If business closes while an employee is on FFCRA sick leave, they must be paid for leave through the date of closure.
     
  • Businesses with less than 50 employees are potentially exempt from providing sick leave pursuant to reasons four and five above (as amended by the CARES Act) and should document any hardship presented by providing this leave (after considering the impact of potential tax credits) and wait for further guidance from the DOL.
     
  • Employees may use FFCRA paid sick leave before using state or local paid sick leave, or accrued PTO.
     
  • Paid leave provided prior to April 1, 2020, does not count to fulfill obligations under the FFCRA.
     
  • Employers must require documentation in support of the reason for leave and include:  
    • Employee’s name, qualifying reason for requesting leave, statement that the employee is unable to work, including telework, for that reason, and the date(s) for which leave is requested; and
    • Documentation including a copy of the Federal, State or local quarantine or isolation order related to COVID-19 applicable to the employee (reason 1 above) or written documentation by a health care provider advising the employee to self-quarantine due to concerns related to COVID-19 (reasons 2 to 4 above) or notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider (reason 5 above). 
       
  • If you intend to claim a tax credit under the FFCRA for payment of sick leave wages, you should retain the FFCRA documentation in your records.

How Much to Pay – Employees must be paid based on their required compensation as follows:

  • Regular rate of pay subject to a limit of: $511 per day and $5,110 in the aggregate for a use described in paragraph (1), (2), or (3) above; or
  • Two-thirds of the regular rate of pay subject to a limit of: $200 per day and $2,000 in the aggregate for a use described in paragraph (4), (5), or (6) above.

Emergency Federal Medical Leave Expansion Act 

The Emergency Federal Medical Leave Expansion Act ("EFMLE") becomes effective April 1, 2020.

  • The EFMLE applies under the following circumstances:
  1. The EFMLE applies to employers with fewer than 500 employees (see below);
  2. Employees must be employed at least 30 calendar days at the time leave is requested;
  3. The need for leave must be a Qualified Need Related to A Public Health Emergency (“PHE”);
  4. A PHE exists when declared by a Federal, State or local authority due to COVID-19; and
  5. The employee must be restored to their position upon return from leave.
  • An employee can request this leave for a very narrow reason: if there is work for the employee and they are unable to work (or telework) due to the need to care for their child under 18 years of age if the child’s elementary or secondary school or place of care is closed, or the care provider of such child is unavailable, due to a PHE.
     
  • Intermittent expanded medical leave is permitted with the consent of the employer (it is not required).
     
  • If your business closed before or after April 1 due to lack of business or if required to close pursuant to Federal, State or local directive, expanded medical leave is not due.
     
  • If your business closes while an employee is on expanded medical leave, employees must be paid for leave through the date of closure.
     
  • Businesses with less than 50 employees are potentially exempt from providing sick leave pursuant to reasons four and five above (as amended by the CARES Act) and should document any hardship presented by providing this leave (after considering the impact of potential tax credits) and wait for further guidance from the DOL. 

The factors are not evaluated as stand-alone.  The entire relationship is to be reviewed in its totality. 

Washington Paid Family and Medical Leave Act

Washington’s Paid Family and Medical Leave is a mandatory statewide insurance program that provides paid time off to give or receive care. If you qualify, this program will allow you to take up to 12 weeks paid, as needed, if you:

  • Welcome a child into your family (through birth, adoption or foster placement)
  • Experience a serious illness or injury
  • Need to care for a seriously ill or injured relative
  • Need time to prepare for a family member’s pre- and post-deployment activities, as well as time for childcare issues related to a family member’s military deployment.

An employee must provide at least 30 day written notice before paid family or medical leave is to begin, if leave is foreseeable.  If leave is not foreseeable within 30 days, the employee must provide notice as soon as practicable.  Notice is not foreseeable when there is a lack of knowledge of approximately when leave is to begin, a change in circumstances, or a medical emergency.  When leave is unforeseeable, an employee must provide written notice to the employer as soon as it is practicable under the facts and circumstances of the particular situation. If the employee is incapacitated or otherwise cannot provide written notice, then written notice may be provided by another responsible party (i.e., spouse, neighbor, co-worker) who has knowledge of the circumstances.

During this pandemic, employees may apply and be eligible for the paid family leave when the employee becomes sick with coronavirus or any other serious illness, or is taking care of a family member who has fallen ill with the coronavirus or another serious illness.

Federal Paid Family Leave (Families First Coronavirus Response Act)

As of April 1, 2020, Washington employees who have to care for their child due to the closing of schools because of the coronavirus may also be eligible for additional paid family leave benefits under the FFCRA.  The FFCRA provides for paid benefits for the limited purpose of when an employee who has been on the employer’s payroll for a minimum of 30 days is unable to work (or telework) due to a need for leave to care for a child of the employee if the child’s school or place of day care has been closed, or childcare provider is unavailable due to the coronavirus. Employees are entitled to take 12 weeks of leave, where the first two weeks will be unpaid, and the remainder of FMLA leave will be paid at a rate of less than two-thirds of the employee’s regular rate of pay.

Additional Resources

A good resource for additional information of benefits available under Washington law you should view the COVID-19 Scenarios and Benefits chart which can be found here.

Visit our COVID-19 Hub for ongoing updates.  

COVID-19 Task Force

Sarah N. Turner



COVID-19 Task Force
Employment Law