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“Safe Start” and the “New Normal”: What Washington Employers Will Be Required to Have In Place Before Re-Opening For Business

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May 19, 2020

On May 1, 2020, Washington Governor Jay Inslee introduced the “Safe Start” four-phase plan for re-opening Washington’s businesses and starting activities where social distancing measures and health standards are in place. “Safe Start” is a collaboration of Washington’s Department of Health and the Governor’s Office. At a minimum, each phase will be in place for three weeks. The state will only move to the next phase when the data and metrics establish a reduction in COVID-19 cases, along with the state’s readiness in four areas: (1) health care system readiness; (2) testing capacity and availability; (3) case and contact investigations; and (4) ability to protect high-risk populations. Currently, for the majority of Washington residents, Phase I is scheduled to end on May 31, 2020. As of the date of this article, it is unknown whether on June 1, 2020, Washington will enter Phase II.

The “New Normal”: The Requirements Individuals and Businesses Must Comply With During All Four Phases

The four phases are designed to allow Washington residents to slowly and safely transition from the stay at home order that has been in effect since March 23, 2020, to being re-introduced to conducting business, educating children, attending events, and socializing with friends in a safe way that will have the least impact on the spread of COVID-19. “Safe Start” includes general guidelines that must be followed under each phase, plus additional guidance and mandatory actions applicable to each specific phase. This section will focus on four specific workplaces and/or industry: construction, restaurants, in-store retail and professional services.

The general guidelines require individuals to continue to engage in physical distancing of six feet apart from others, wearing facemasks, staying home and avoiding others when sick, frequently washing hands, covering coughs and sneezes, avoiding touching one’s face with unwashed hands, and disinfecting surfaces and objects regularly. Businesses and employers will be required to follow the individual mandates stated above, but they also have the responsibility to keep their employees and workers safe and must ensure that, regardless of the industry served, the following measures are in effect in the workplace:

  • Employees and visitors maintain six foot physical distancing;
  • Install and/or create barriers to block sneezing and coughing when physical distancing is not possible;
  • Limit close interactions with patrons;
  • Provide adequate sanitation and personal hygiene for employees, vendors, customers, and clients;
  • Provide the necessary personal protective equipment (PPE) and facemasks to employees;
  • Identify strategies and draft written guidelines for addressing employees who become ill with COVID-19, or those who may have been exposed; and
  • Educate employees on the signs, symptoms, and risk factors associated with COVID-19, and how to prevent the spread.

The Labor & Industries Division of Occupational Safety and Health will be ensuring that the above measures are in place prior to the return to the work site, and will continue enforcement efforts after the re-opening of the work sites to ensure that businesses continue to comply with the requirements.

Under these guidelines, employers are prohibited from discriminating and/or retaliating against an employee for coronavirus matters including reporting unsafe working conditions or calling in sick.

Phase I – Construction Work

Under Phase I, only essential businesses were allowed to operate under the stay at home order. Governor Inslee provided an extensive list of essential employers and businesses that did not include construction as essential with an exception for work at constructions sites, projects for essential facilities, and residential construction for emergency repairs.

On April 24, 2020, Governor Inslee expanded additional construction work sites during Phase I for businesses that had abandoned construction projects due to the stay at home order, to any low risk construction that could demonstrate the business had met all of the COVID-19 health and safety standards. “Low-risk” construction included, “any existing construction project . . . [that meets the mandatory requirements set forth below] that do not require workers to be closer than six-feet together. If a work activity requires workers to be closer than six-feet, it is not considered low risk and is not authorized.” Governor Inslee declined, during Phase I, to allow projects to begin that were not existing construction projects or previously authorized construction during Phase I.

Under the modified Phase I requirements for a construction site to re-open, contractors must develop and post at each job site a comprehensive COVID-19 exposure control, mitigation, and recovery plan incorporating the following:

  • Post at each job site written notice to employees, subcontractors, and government officials of the work that will be performed at that job site and a signed commitment to adhere to the COVID-19 requirements;
  • Contractors must designate a site-specific COVID-19 supervisor at every job site to monitor the health of employees and enforce the CCOVID-19 safety plan. The COVID-19 supervisor must be present during all construction activity, except on single-family residential construction when there are six or fewer people on site.
  • “Toolbox Talk” or “Tailgate Training” must be conducted on all job sites on the first day of returning to work and weekly thereafter, to explain the protective measures in place for the workers;
  • Attendance must be communicated verbally and the trainer will sign in each attendee;
  • COVID-19 safety requirements shall be visibly posted at each job site;
  • Social distancing of six feet must be maintained on the worksite;
  • Rest and meal breaks should be taken in shifts to avoid gatherings of any size;
  • Minimize interactions when picking up or delivering supplies;
  • Provide PPE and facemasks for each employee, eye protection and gloves must be worn at all times, and if appropriate PPE cannot be provided then the worksite must be shut down; and
  • Keep and retain a daily attendance log of all workers and visitors for four weeks. The log must include name, phone number, and email address of all workers and visitors.

“The New Normal” – Transitioning to Phase II: The Protocols and Procedures That Must Be in Place Before Businesses Can Welcome Back Employees and Re-Open for Business

While it is unknown whether Washington will meet the metrics that are required to move into Phase II by the end of the month, certain Washington counties that have a population of less than 75,000, and that have not had a new case of COVID-19 in the past three weeks, may apply for a variance to move to Phase II before the rest of the state. Currently, there are nine counties approved to move into Phase II: Columbia, Garfield, Lincoln, Ferry, Pend Oreille, Wahkiakum, Skamania, Stevens, and Whitman. Under Phase II, outdoor recreation as well as social gatherings involving five or fewer people outside of one’s household may resume. In addition, certain businesses/industries will re-open after meeting mandatory guidelines. These businesses include in-home/domestic services, retail (with in-store purchases), real estate, professional services/office-based businesses (telework remains strongly encouraged), hair and nail salons, pet grooming, and restaurants (less than 50% capacity with table size no larger than five).

Phase II – Re-Opening of Restaurants for Dine-In

On May 11, 2020, Governor Inslee announced the business activity guidelines that restaurants must comply with to ensure the safety of its employees and customers, and are required to be effective and in-place at the time of re-opening. Restaurants are required to follow the general guidelines set forth above, and several other guidelines specific to the restaurant industry. Further, while there will be no reopening inspections (unless it comes to the state’s attention of potential violations) all restaurants must meet the below standards prior to re-opening:

  • No more than five people at a table;
  • Hand sanitizer must be available at all entries for staff and patrons;
  • No bar seating during Phase II;
  • Guest occupancy must be 50% of maximum building occupancy or lower (as determined by the fire code);
  • Tables must be placed far enough apart (measured by occupied chair to occupied chair) to ensure there is a minimum of six feet apart;
  • Highly recommended customers wear masks when entering and exiting the restaurant, and while in the restroom;
  • Buffet and salad bars are not permitted;
  • Single use menus required for in-person dining;
  • Condiments must be individual size and no longer left on the table;
  • Implement a plan to ensure proper physical distancing in lobby, waiting areas, payment counters;
  • Minimize the number of staff serving any given table, with one staff to bring the beverages along with the silverware; and
  • Take the names of customers who voluntarily provide contact information and hold on to information for 30 days before destroying it.

Along with keeping the patrons safe and prior to re-opening, restaurant owners must also comply with the following requirements to ensure the safety of their employees:

  • Educate the workers in the language they best understand about coronavirus and how to prevent transmission, and the employer’s COVID-19 policies;
  • Maintain a minimum six foot separation between customers and employees in all interactions;
  • Provide PPE for employees, and cloth facial coverings are required to be worn by all employees not working alone on the jobsite;
  • Ensure frequent handwashing;
  • Establish schedule that includes frequent cleaning and sanitizing on commonly touched surfaces;
  • Screen employees for signs/symptoms of COVID-19 at start of shift. Sick employees are to stay home or immediately go home; and
  • Employer must designate a site-specific COVID-19 supervisor at each job site to monitor the health of employees and enforce COVID-19 job site safety plan.

Phase II – In-Store Retail Operations

On May 12, 2020, Governor Inslee announced business activity guidelines specific to in-store retail. The guidelines keep both the employees and customers safe. Prior to re-opening, retail stores must have in place the following guidelines, procedures, and protocols:

  • Arrange contactless pay options, pickup and/or delivery of goods whenever possible;
  • Maintain customer traffic management by limiting guest occupancy to 30% of maximum building occupancy (excluding employees);
  • Arrange the flow of customers to avoid choke points and reduce crowding;
  • Mark high traffic areas with signs to ensure six feet apart;
  • Place signage at the entrance and around the store notifying customers of the occupancy limit, six foot physical distancing and policy on face coverings;
  • Place sneeze guards at the registry;
  • When possible, establish hours of operations that permit access solely to the high-risk groups (i.e., Senior Hours);
  • Frequently sanitize high touch areas at fitting rooms, check-out counters, and shopping cart handles;
  • Fitting rooms are to be sanitized after each customer use;
  • Items tried on by customers that are not purchased must be removed from active inventory on the sales floor and stored for no less than 24 hours.

For the safety of employees, retail establishments are to follow similar guidelines that were set forth for the construction and restaurant industries, including further guidance on maintaining six feet separation between all employees in all interactions at all times, which may be achieved by minimizing staff or customers in narrow or enclosed areas, staggering breaks, and work shift starts.

Phase II – Professional Services

On May 13, 2020, Governor Inslee announced business activity guidelines for professional services. Professional services are office-based occupations that serve a client base. This includes, but is not limited to, accountants, architects, engineers, financial advisors, information technologists, insurance agents, lawyers, tax preparers, and other professional service occupations. Prior to re-opening, the professional services must adopt a written procedure that is at least as strict as the Phase II requirements.

Professional services must comply with the general guidelines set forth above for safety and health requirements. In addition, all professional businesses are required to post signage at the entrance of their building that strongly encourage customers to use cloth face coverings when in store with their staff.

Professional services are also required to comply with practices that are unique to this industry and fall outside the general guidelines:

  • Prior to re-opening the business must develop and post at each location a comprehensive COVID-19 exposure control, mitigation, and recovery plan. The plan must include policies regarding control measures, incident reporting, location of disinfectant, COVID-19 safety training, exposure response procedures, and a post-exposure incident project-wide recovery plan. A copy of the plan must be made accessible at the business location;
  • COVID-19 safety information and requirements (CDC, DOH, OSHA posters, and the employer-owned written policies shall be visibly posted;
  • Authorized access to the business should only be through the front door;
  • Minimize the number of people in the waiting area;
  • Arrange furniture to encourage social distancing with at least six feet between seats;
  • Identify and control “choke points” and “high risk areas” where employees or clients may typically congregate;
  • Ensure frequent hand washing;
  • Frequent cleaning and sanitizing, particularly commonly touched surfaces;
  • Keep guest occupancy at 50% of maximum building occupancy or lower;
  • Tissues and trash cans must be made available throughout the worksite;
  • Restrict access where unauthorized visitors may enter (i.e., “back of the house”);
  • Increase the frequency of the HVAC system filter changing;
  • Frequently cleaning restrooms;
  • Face shields or sneeze guards should be placed throughout the office at all places of potential interaction between service providers and clients;
  • Post a notice for walk-up guests regarding access to the facility. The notice should include the phone number that the guest should call to determine the availability of services;
  • Gathering of any size must be prevented by taking breaks, scheduling activities and lunch in shifts; and
  • No more than one person per vehicle for any necessary travel that are not part of the same household.

Professional services are also required to prepare a sick employee plan that should include:

  • Screening all employees at the beginning of the day by asking them if they have a fever, cough, shortness of breath, fatigue, muscle aches, or new loss of taste or smell;
  • Ask employee-service providers to take their temperature at home prior to arriving at the business or take the temperature when the employee arrives. Thermometers at work should be “no contact” and any temperature of 100.4 F or higher is considered to be a fever and employee must be sent home;
  • Create policies that encourage employee-service providers to stay home or leave the location when experiencing symptoms or when they have been in close contact with a confirmed positive case;
  • Employees should understand that they must notify their employer if they develop symptoms during a shift; and
  • All employees must be trained on the business policies and on COVID-19 and how to prevent its transmission.

Recommendations to Employers and Businesses in Preparing for the “New Normal”

The business activity guidelines announced by Governor Inslee included six main categories that employers must ensure are in place prior to re-opening for business. Recognizing that the guidelines may feel overwhelming and cumbersome, below are a sample of recommended actions that employers can take to meet Phase II requirements. The recommendations were compiled using resources from the Center for Disease Control (“CDC”), Department of Labor (“DOL”), and Washington’s Department of Labor & Industries (“L&I”).

1: Mandatory Social Distancing – All employees are required to keep at least six feet away from co-workers and the public.

Indoor Work Areas

  • Move workstations farther apart;
  • Designate a drop-off/pick up point for transferring items or picking up supplies to avoid close contact;
  • Encourage employees to work remotely from home (permanently, off/on weeks, specific days) and provide the necessary equipment for the employee to set up a workstation at home;
  • Use dividers or floor markings to distinguish appropriate spacing for people waiting in lines or at counters;
  • Designate one or more employees as a “physical distance monitor” to ensure social distancing practices are consistently followed;
  • Limit the number of visitors entering the office; and
  • Stagger work schedules so people arrive and depart work at different times

Break and Meeting Rooms

  • Stagger break and lunch schedules to minimize occupancy;
  • Hold gatherings or meetings outside so it is easier to maintain six feet apart;
  • Set up break room so there are limited chairs and tables available, or if you have space, designate two break rooms;
  • Set up conference rooms with chairs six feet apart and remove the extra chairs so there is not a temptation to increase the number of people who attend; and
  • Conduct meetings virtually through Zoom, Microsoft Teams, or other video conferencing site.

Business Travel and/or Outdoor Work Area

  • Significantly reduce employee’s business travel by encouraging virtual meetings and trainings;
  • Restrict employees from traveling together by car or carpooling (during the pandemic time);
  • Before meeting with clients (inside or outside the office) ensure that the client is healthy and has not recently been exposed to COVID-19. If the client is sick or has recently been exposed, either reschedule the meeting or arrange a conference call or virtual meeting; and
  • Reduce in-person visits with clients and customers.

2: Frequent Handwashing – The CDC identifies hand hygiene as an important part of the U.S. response to COVID-19 as hand washing prevents the spread of pathogens and infections.

  • Do not assume all employees have researched how to hand wash. As part of the required training it is recommended that you show video instruction of the proper way to hand wash;
  • Post in the break room and restroom a visual guide of how to properly wash hands and the importance of doing so;
  • Provide an increased supply of soap, water, and towels and monitor throughout the work day for restocking of supplies and emptying trash; and
  • Strongly encourage employees to wash their hands prior to work, at breaks, after using the restroom, before and after they eat, and after touching any surfaces suspected of being contaminated.

3: Routine and Frequent Cleaning of Surfaces – COVID-19 can live for hours to days on surfaces such as countertops and doorknobs.

  • Establish a housekeeping schedule to track regular, frequent, and periodic cleaning;
  • Frequently clean floors, counters, and other surfaces to prevent a build-up of dirt and residues that can contain contamination;
  • Surfaces touched by people daily (counter, file cabinet, keyboard) should be cleaned frequently with disinfectants;
  • Follow CDC’s cleaning guidelines seen here.

4: Procedures to Handle Sick Employees – Identifying and isolating an employee who was infected with COVID-19 is critical in protecting workers, customers, visitors, and others.

  • Require sick workers, or an employee who may have been exposed to COVID-19, to stay home;
  • Identify and isolate workers who exhibit signs of COVID-19;
  • Require daily self-assessment of employees as to whether the employee has been exposed to anyone with COVID-19, or if the employee is experiencing any of the virus symptoms;
  • Instruct employees to take their temperatures, or the alternative, is for the employer to check employees’ temperatures on a daily basis using only a no touch thermometer. Employees with temperatures over 100.4 F should stay home as precautionary measures;
  • Review with employees the company’s sick and/or PPO policy, and the state’s paid sick leave policy, if applicable;
  • Be flexible with your employees and make sure the employees understand that they will not face adverse action for staying home because they are sick, or a family member is sick; and
  • For purposes of COVID-19, it is recommended that employers do not require a medical note because depending on when the employee is sick the healthcare provider may be extremely busy with seriously ill COVID-19 patients.

5: Personal Protective Equipment – For most businesses, the necessary PPE will be facemasks. When an employee wears a facemask the employee is protecting others from their own transmission of droplets. With COVID-19 being contagious when a person is asymptomatic, the facemask protects others in the vicinity.

  • Invest in supplies of facemasks for employees and visitors.
  • Require all employees wear facemasks when in shared space with others (i.e., if employee has their own office then the employee would not have to wear a facemask unless someone was in the employee’s office, or the employee is outside their office.

6: Employee Education – Washington is requiring employers to provide education to the employees because it is imperative that everyone participates in curtailing the spread of the virus. Topics should include:

  • The signs, symptoms, and risk factors associated with COVID-19;
  • How to prevent the spread of the virus at work, including identifying the steps taken by the employer to protect the employees from the spread of the virus;
  • The importance of hand washing;
  • Proper respiratory etiquette including covering coughs and sneezes, not touching eyes, noses, or moth with unwashed hands;
  • Communicate preventative safety measures;
  • Post information for the employees from DOSH, OSHA, CDC and other similar COVID-19 authorities; and
  • Provide employees with information about what is available to them under Washington’s paid sick leave, paid family leave, the federal Families First Act and CARES.

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