Identifying “High-Risk” Workers During the Pandemic is Crucial to Continue Essential Construction Business in Washington State

On April 13, 2020, Governor Inslee issued Proclamation 20-46, specifically addressing protections for high-risk employees and worker’s rights^[1]. This Order applies to ongoing construction work deemed essential under the Stay Home, Stay Healthy Proclamation, and includes yet another requirement for employers managing construction companies to be aware of in this ever-changing environment.

High-risk employees are not just found in office jobs, but also in the construction business, as many conditions that are considered “high-risk” in terms of COVID-19, would not preclude individuals from working on construction sites. "High-risk" conditions protected by this Order can be broken down into three main categories affecting employees, they are: (1) employees 65 and older; (2) employees with chronic medical conditions and (3) employees that are immuno-compromised.^[2] Individuals of any age may have chronic medical conditions, which are allotted special protection during this pandemic. Chronic medical conditions include asthma, chronic lung disease, heart disease, diabetes, severe obesity, high blood pressure (even if controlled by medication), liver disease, kidney disease, COPD and or other conditions identified by the Center for Disease Control as putting someone at higher risk of severe illness from COVID-19. Immuno-compromised individuals may include conditions that are short-term or long-term in nature and may affect people of any age. They include pneumonia, cancer, HIV, auto-immune diseases such as lupus, multiple sclerosis and rheumatoid arthritis, as well as individuals that smoke or are on medication which weakens their immune system, such as corticosteroids.

The Order requires employers to seek out alternative work arrangements, including telework, remote work locations, reassignment and social distancing measures to provide high-risk employees a safer option to their customary in-person jobs. Alternative work arrangements can be difficult, if not impossible on the construction site, therefore, if it is not feasible, the employer must give employees the decision to use accrued leave or unemployment insurance while they remain out of work, while continuing to maintain employees’ health insurance benefits. To ensure that essential construction continues, employers may hire temporary workers to fill jobs of employees that cannot work due to high-risk conditions. However, employers must ensure employees their roles are available when it is safe for them to return to work, without retaliation.

Most importantly, Governor Inslee’s Order supersedes all employee and labor union contracts that would obstruct the protections set forth in Proclamation 20-46. This proclamation is in effect until June 12, 2020 and may extend beyond that date by order of the Governor. Any person found in willful violation of the Order, may be guilty of a gross misdemeanor, punishable by one year in jail and/or $5,000 fine^[3]. Given the serious nature of this Order and since these conditions affect people of any age and may not be obvious to employers, it is imperative that construction companies ensure that their workers understand their rights under this Proclamation and follow the guidelines as set forth in the Order.