Mask wearing is now required in Washington State. Governor Inslee implemented a new statewide requirement that all residents wear masks in public. On June 23rd, Governor Inslee announced a new statewide requirement that all Washingtonians and visitors to the State wear facemasks or coverings in indoor public places such as stores, offices and restaurants. The order also requires that face coverings be used in outdoor settings where people cannot stay six feet apart from people not of their own household.
Governor Inslee’s order follows significant increases in the COVID-19 transmission rate throughout Washington. Yakima County is currently a hotspot, with a rate of COVID-19 spread in that is 27 times that of King County. The Governor has paused the process for counties to enter Phase 4, due to increases seen in case numbers across the State. This pause effects even the 7 counties where the data would otherwise support entering the final phase of reopening, which has essentially no restrictions on activities or business.
Skagit County has also seen an increase in transmission over the last several weeks. According to a notice from Skagit Public Health, this increase is primarily due to unauthorized social gatherings, travel and transmission between coworkers. Skagit County is currently in Phase 2.
As more and more people return to work, begin eating out in restaurants again, and seeing friends and family, the importance of taking precautions against the spread of the Coronavirus increases. Mask wearing is a simple precaution that almost everyone can implement. There are exceptions for those who are not medically able, are deaf and/or hard of hearing, and children under 5 years of age. Everyone else should wear a mask.
There is ambiguity when the order states that mask wearing is required outdoors when you cannot be at least six feet apart from other people. This can be hard to maintain in the city, where you likely should wear the mask anytime you’re walking down the street. But, even is out on a hiking trail, you should be prepared to put a mask on when you come into contact with others.
The mask wearing requirement went into effect on Friday, June 26, 2020. Willful noncompliance is a misdemeanor offense. You can find further information on the Washington state Coronavirus website.
Exposure to the Coronavirus, development of COVID-19 and workers’ compensation can be connected. In some cases, workers with COVID-19 may be able to file a workers’ compensation claim in Washington State. Allowance of a claim is possible as an occupational disease according to the Department of Labor and Industries, which generally means that there must be something “distinctive” about the type of employment in which the individual is exposed to the virus (as opposed to simply a coincidental exposure).
COVID-19 Pandemic is Ongoing in Washington State
The Coronavirus is highly contagious and easily transmissible. It is now present throughout the country, with some areas more saturated than others. Although the overall case numbers in Washington State are better than many other states, we have not yet bent the curve to bring case numbers down to baseline. Instead, most areas are holding steady in the mid-range of our case numbers. Some areas, such as Yakima County, remain hotspots.
Governor Inslee recently visited Yakima County to address the county’s high rate of infection. The rate of transmission reflects the number of people each infected person would be expected to transmit the virus to, with a rate of 1 or fewer allowing for a decline in cases or over 1 an expansion of cases.
The Yakima Health District said that Yakima County’s transmission rate was 2 to 2.5 while Western Washington’s rate is under 1, according to reporting by the Yakima Herald. The rate of COVID-19 spread in Yakima County is 27 times that of King County, the state’s largest county, per the Governor’s press release about his visit.
Governor Inslee recently announced that he intended to make mask-wearing mandatory in Yakima County to help curb the spread of COVID-19. No word yet as to how Yakima County’s “constitutional sheriff” Robert Udell will enforce a mask-wearing order, which he has previously suggested would violate some inchoate constitutional provision.
In King County, where our firm is located, we have only just entered Phase Two of reopening. Our case numbers have ticked back up a bit in recent days. Steps are being taken here to reinforce the message that precautions still need to be taken as more businesses reopen.
Occupational Disease Claims Explained
An occupational disease claim covers workers who develop a health condition due to exposure to substances, diseases, or injurious conditions on the job. An occupational disease claim can cover a variety of conditions that result from repetitive micro-traumas, such as physical injuries due to overuse, exposures to infectious agents, or exposures to toxic substances.
In order for such a claim to be allowed, the Department of Labor and Industries needs to find that the claimed medical condition resulted from exposure on the job, on a more-probable-than-not basis. In addition, that exposure must be due to “distinctive conditions” of employment. This does not necessarily mean that there is a higher prevalence of an injury or medical condition arising from your type of employment than there is in the general labor market overall, just that some distinctive aspect of your job led to the exposure/overexertion.
As an example, nurses and other medical professionals are exposed to various diseases and infections on a daily basis, in spite of the numerous precautions against infection taken by hospitals and doctors’ offices to prevent the spread of disease. Conversely, many people in all walks of life may be exposed to individuals with transmissible diseases or infections, but in the case of the medical professional, their job distinctly places them in the path of infection as compared to the general public or all employments generally.
Coronavirus, COVID-19 and Workers’ Compensation Claims
Workers with significant exposures on-the-job, or with specific conditions of their employment exposing them to the virus, could file a claim and potentially receive benefits. With exposure to the Coronavirus rather commonplace within our communities, the connection between work exposure and development of COVID-19 must be direct and clear in order for a claim to be allowed. In the case of the Coronavirus, while you do not necessarily need to identify the specific patient or person to whom you were exposed, the ability to show that your job involved exposure to known cases of the virus would probably be required.
Washington State has issued guidance for the Department of Labor and Industries (DLI) that there should be a presumption that the onset of COVID-19 is related to work exposures for some frontline workers, including healthcare workers and medical professionals. If a period of quarantine is medically necessary, the workers’ compensation claim would pay time loss compensation for these workers, even if they are not ill, for up to 14 days.
Other frontline workers, especially those performing essential services in high-risk environments, could also be entitled to benefits under a workers’ compensation claim. For claimants working in jobs not explicitly covered under the presumption of work relatedness, each claim will be reviewed on an individual, case-by-case basis. Specific criteria must be met for a claim to be allowed.
Unfortunately, although DLI’s guidance is great news for frontline healthcare workers, for most other people the guidance incorrectly states the legal standard for allowing an occupational disease claim. For instance, DLI suggests that there must be “an increased risk or greater likelihood of contracting the condition” in the person’s particular employment. The Washington State Supreme Court has rejected the “increased risk” test (elsewhere referred to as the “positional risk” doctrine) in several cases, most recently in Street v. Weyerhaeuser, 189 Wn. 2d 187, 200-01 (2018).
If you believe you have been exposed to the Coronavirus and developed COVID-19 due to an on-the-job exposure, you should contact an attorney. If you have questions about COVID-19 and workers’ compensation, our firm is available to assist you.
Benefits Under a Workers’ Compensation Claim
The benefits available would include time loss compensation for the days the worker is unable to work due to quarantine or illness. The claim would cover the cost of allowed medical treatment. In many cases, if there is no onset of symptoms or recovery from illness happens quickly, there may be relatively little compensation paid under a claim.
In some cases, people face hospitalization and extended periods of recovery. In King County, current data shows that 16.8% of positive cases require hospitalization. The King County daily summary dashboard provides statistics about testing numbers and rates for positive results, hospitalizations and deaths. The graph displays data for the county overall as well as by city. Closer inspection reveals that the rates for positive test results, hospitalizations and deaths are better – and worse – in different parts of the county.
Medical expenses can quickly add up, and time lost from work may be greater than one would expect.
Permanent Impairment After COVID-19
In most cases, there are no lasting effects that remain after recovery from COVID-19. However, it is now becoming clear that there can be permanent effects from COVID-19 in some cases, even for people who recover without the need for hospitalization.
If there is permanent residual impairment after COVID-19, an allowed workers’ compensation claim would provide a monetary impairment award once the claim closes. The most common reported permanent effects are connected to impaired lung function. There are also reports of stroke, kidney, liver and heart conditions that remain after recovery from COVID-19.
Impairment awards paid at claim closure are based on ratings of permanent impairment made by a physician. For injury to internal organs, the State uses a category system for rating impairment. Each category relates to a set of symptoms present, with higher categories compensating for higher levels of impairment due to greater loss of function.
In the rare case where death results, the worker’s family could receive a burial benefit and compensation for the loss of life due to the work exposure and illness.
Filing a Claim for COVID-19
For those that are diagnosed with COVID-19 that were significantly exposed to the Coronavirus on-the-job, a claim may be filed with the Department of Labor and Industries. A claim can be filed:
At your doctor’s office (if you complete the Report of Accident at your doctor’s office, the doctor files the form for you).
You can watch a DLI video that generally describes the process for filing a claim if you need more information about the steps to be taken.
More Information and Resources
DLI has a page of information and links to resources dedicated to answering questions about COVID-19 and workers’ compensation. This includes questions raised by employers and businesses, injured workers whose non-COVID claims have been impacted by the social changes brought on by the virus, as well as workers who believe they have developed COVID-19 through work exposure.
The Washington Department of Health has a COVID-19 Information Line: 1-800-525-0127. Phone lines are staffed from 6 am – 10 pm. Interpreter services are available in multiple languages.
Our intent in sharing this information is not to spur a flood of baseless claim filing. The truth is that exposure to the Coronavirus on the job could have a significant impact on a worker and their family. In those rare circumstances where the facts line up to support allowance of a claim, the benefits available under a workers’ compensation claim could help to alleviate this impact.
If you have questions about COVID-19 and workers’ compensation, or if your claim was denied, please feel free to contact our firm. We offer a free case analysis, and would be happy to discuss your specific circumstances with you.
As King County enters Phase Two, many workers will be returning to their jobs. King County entered Phase Two of the Safe Start plan for reopening on June 19th. Under the Safe Start plan, many more types of businesses can reopen in some fashion. Read the full notice, here.
Some of the types of businesses that can reopen as King County enters Phase Two include:
Card rooms: All card rooms are subject to Phase 2 guidance which generally restricts the card room designated area to the lesser of 25% capacity or 50 individuals. The restaurants or taverns area of the facility is required to follow the Phase 2 guidance, which restricts capacity to 50% and prohibits bar service. Games are also limited to 25% occupancy per table. Limitations on capacity does not include staff.
Restaurants and taverns: All restaurant and tavern operations are subject to Phase 2 guidance which prohibits any bar seating and restricts indoor customer occupancy to 50% of a building’s occupancy or lower as determined by the fire code. Outdoor dining is allowed at 50% of capacity and does not count toward the building occupancy limit; additional outdoor seating will be allowed provided it follows Public Health – Seattle & King County’s best practices and a restaurant secures any municipal permit that may be required.
Real estate (residential and commercial): All real estate activities are subject to Phase 2 guidance which generally restricts out of office activities to appointment only and with no more than three people; office activities require reservations for in-person customer services and guest occupancy is limited to 50% of a building’s occupancy.
Personal services: Includes Cosmetologists, Hairstylists, Barbers, Estheticians, Master Estheticians, Manicurists, Nail Salon Workers, Electrologists, Permanent Makeup Artists, Tattoo Artists, Cosmetology Schools and Esthetics Schools. Limitations: All personal services are subject to Phase 2 guidance which restricts customer occupancy to 50% with the exception of one to one services in an enclosed room.
Domestic services: Includes any worker (hourly, salaried, independent contractor, full-time, part-time, or temporary) who is paid by one or more employer and provides domestic services to an individual or household in/about a private home as a nanny, house cleaner, cook, private chef, or household manager. Limitations: All domestic services are subject to Phase 2 guidance.
New workplace mask guidance helps determine Which Mask for Which Task
Most workers in Washington have to wear a mask or face covering at work under new coronavirus workplace safety and health requirements that took effect June 8th.
With some exceptions, workers must wear some type of face covering or mask to help limit the spread of the coronavirus to those around them. Other higher-risk jobs may require respirators to protect the worker from infection by patients or clients.
Under the requirements, employers must provide the face coverings and masks to employees at no charge. Workers can bring their own face coverings and masks as well, as long as they meet requirements.
Which mask for which task
The new Department of Labor & Industries (DLI) guidance document describes various types of jobs based on the level of risk to workers, from negligible risk to extremely high. The publication spells out which face-covering, mask, or respirator is required for that task.
Along with details about the appropriate protective face covering, the guidance also includes photos to help workers and employers identify the type of mask required.
“We know that choosing the correct face covering, mask or respirator can be confusing. It’s a new experience for most employers and people on the job,” said DLI Assistant Director Anne Soiza. “This guidance should help employers and workers understand the risk level for various tasks, and make the right choice to protect workers from the coronavirus. Employers needing assistance can call on our statewide consultants for help.”
Exceptions to mask requirements
There are some limited exceptions to the workplace requirements for masks and face coverings. For example, someone working alone in an office, vehicle, or at a jobsite with no in-person interactions is not required to wear a face covering or mask.
Other exceptions include workers who are deaf or hard of hearing, or a person on the job who communicates with someone who relies on language cues such as facial markers and expression and mouth movements as a part of communication. A worker with a medical condition or disability that makes wearing a facial covering inappropriate is also exempt from the requirement.
New training and information
DLI has developed a training template that employers can use to meet requirements to train employees about coronavirus. It covers numerous topics including symptoms, transmission, face coverings and worker rights. The training is available in English and Spanish online.
Global potato product producer Lamb Weston has posted its intention to layoff over 600 workers in Washington State, effective June 15th. Washington’s Employment Security Department issued a Worker Adjustment and Retraining Notification (WARN) on June 8th.
Lamb Weston is one of the world’s largest frozen potato product producer companies. It provides potato products to restaurants and food service businesses, large and small. Think anything potato – mashed potatoes, baby red potatoes, french fries, waffle fries, tater tots, sweet potato fries, even deep-fried pickle spears – and you’re likely to think of a Lamb Weston product.
The WARN notice indicated that the number of workers affected would be 360 in Connell and 300 in Warden, both home to Lamb Weston potato processing plants.
Warden, WA, population 2,692, is a small town in Grant County, WA approximately 20 miles SE of Moses Lake. Connell, with a population of 5,566, is another 30 miles SE of Warden, in Franklin County. The Lamb Weston layoffs represent a job loss of 11% for Warden and 6.5% for Connell, which is also home to the Coyote Ridge Corrections Center.
The Employment Security Department will send staff from the local rapid response team and the WorkSource center to perform outreach to employees of Lamb Weston to ease the transition.
All Board of Industrial Insurance Appeals appeal proceedings will be by remote access through July. The Board has extended the period of time that Board offices will remain closed to the public due to the Coronavirus.
If you have proceedings set through July 3rd, there should be no need to change them. Any court proceedings scheduled as in-person events during the July 3 – July 31 extension period will need to be addressed.
Board judges will typically handle proceedings by telephone conference calls. In certain circumstances, the judge may opt for video conferencing using a third-party service, CourtCall. This is usually for the purpose of hearings, where evidence and testimony is presented, rather than more informal procedural events.
Conferences and Hearings to Be Adjusted
Board judges will reach out to those parties with events in July. The judge will ask if they can convert the proceedings from live to remote-access events. In the event that a party is aggrieved that the appeal proceedings will be remote, a request can be made for the case to be continued to a later date. This would most likely be in the case of a hearing. This decision is at the judge’s discretion. Any rescheduled event date is subject to the availability of the judges and parties and will likely cause a delay in proceedings.
More Information and Assistance
Appeal proceedings will be by remote access through July 31st. More information about this process can be found on the Board’s website. If you have an appeal pending, you may also contact the judge assigned to your case, or their assistant.
We often suggest that claimants have legal representation when their case is on appeal. This may be especially true when appeal proceedings will be remote access. Feel free to contact our firm for assistance with your case. We offer a free analysis of your case and will give you our opinion on whether you need legal assistance, or not, and how we recommend you proceed.
The Boeing Company began a planned series of lay-offs last week in Washington State. The Boeing lay-offs will effect primarily engineers and machinists, eliminating many union jobs.
Engineers and technical professionals at Boeing are represented by the Society of Professional Engineering Employees in Aerospace (SPEEA). Machinists are represented by The International Association of Machinists (IAM).
IAM Local 751 has posted a list of 3,792 jobs included in the initial round of Boeing lay-offs. The list is broken down by job positions and includes the seniority cut-off dates, as they were known on the date of posting, in an effort to help their members anticipate the impact on their individual jobs.
SPEEA Local 2001 writes that The Boeing Company last week notified 1,239 SPEEA-represented employees that they are being laid off. The break down shows 697 employees in the Professional unit and 542 employees in the Technical unit are being released.
Boeing lay-offs will be combined with voluntary separations, such as buy-outs or early retirements. In total, the initial round of job cuts will reduce Boeings employee roster by approximately 10,000 people.
Through the combination of buy-outs and lay-offs, SPEEA will lose about 1,500 engineers (12%) and 1,000 technical staff (21%). IAM will lose about 5,000 machinists (16%). In addition, about 2,500 nonunion employees will also lose their jobs.
The Seattle Times published an article by aerospace reporter Dominic Gates, on May 29th, which outlines the distribution of job cuts across the region, and provides a detailed analysis of the Boeing programs impacted. Mr. Gates reports that the cuts will impact the commercial airplanes division. Boeing’s defense programs continue to do well.
CNBC also published an article about the Boeing job cuts, on May 28th, by Leslie Josephs. Ms. Josephs noted that the Coronavirus has driven down demand for air travel, hurting the airline and leasing customers Boeing relies on.
The CNBC article also notes that The Boeing Company had already been struggling with the aftermath of two crashes of its 737 Max planes, grounding the planes worldwide. Cancellations of orders are now piling up. Boeing posts updates on the 737 Max program and the latest information on Boeing’s response to the COVID-19 pandemic on it’s website.
Boeing has indicated it’s need to reduce it’s workforce, reported to be roughly 160,000 people, by about 10%. This and other steps to reduce expenditures are needed as it deals with an unprecedented downturn in business combined with it’s struggle to gain approval for flight of the 737 Max planes after repairs were made to the systems involved in the crashes.
The Occupational Safety and Health Administration (OSHA) has issued guidance for rideshare, taxi, and car service workers. This guidance is meant to provide both workers and passengers with increased safety during the Coronavirus pandemic. In addition, OSHA has provided guidance for drivers transporting medical patients with known or suspected COVID-19.
Guidance for Employers in the Car Service Industry
For employers in the car service industry (rideshare, taxi, and other car services), the following tips can help reduce the risk of exposure to the coronavirus:
Encourage drivers to stay home if they are sick.
Ensure vehicle door handles and inside surfaces are routinely cleaned and disinfected with Environmental Protection Agency-approved cleaning chemicals from List N or that have label claims against the coronavirus.
Advise drivers to lower vehicle windows to increase airflow.
Allow drivers to wear masks over their nose and mouth to prevent spread of the virus, and ask customers to do the same.
Provide alcohol-based hand rubs containing at least 60 percent alcohol for both drivers and customers.
Provide drivers with disposable towels and Environmental Protection Agency-approved cleaning chemicals from List N or that have label claims against the coronavirus for disinfecting surfaces.
Provide drivers and customers with tissues and trash receptacles.
Limit the number of passengers drivers can transport at a single time, and install plexiglass partitions between driver and passenger compartments where possible.
Encourage drivers to report any safety and health concerns.
Special Precautions for Drivers Transporting Patients to Health Care Facilities
The Occupational Safety and Health Administration also provides guidance for rideshare, taxi, and car service workers. OSHA considers “Medical transport workers (e.g., ambulance vehicle operators) moving known or suspected COVID-19 patients in enclosed vehicles” to be at high risk for exposure.
If you are transporting medical customers, take the following precautions:
Be sure to have alcohol-based hand sanitizer containing at least 60 percent alcohol content and use it often.
It is recommended that you wear personal protective equipment, such as disposable gloves and a face mask. It is important to replace your disposable gloves and face mask after every medical customer.
If you are transporting a patient that is known to or is suspected to have COVID-19, OSHA recommends that you wear a respirator. You may also want to wear a gown and a face shield or goggles if you help customers in and out of the car.
After helping a medical passenger out of the car, you should remove all protective equipment and wash your hands or use high alcohol content hand sanitizer before getting back into your car.
Speak to your company administration about providing personal protective equipment if they have not provided it.
For more information, visit www.osha.gov/coronavirus or call 1-800-321-OSHA (6742).
Washington businesses ignoring pandemic closure orders and deciding to open or operate in direct violation of Gov. Inslee’s Stay Home, Stay Healthy order may be cited and fined for unsafe workplace conditions under emergency rules filed May 26, 2020 by the state Department of Labor and Industries (DLI).
The closure order and the Safe Start Plan to reopen businesses are in place to keep workers and the public safe and to prevent the spread of the easily transmissible coronavirus.
The emergency rules, enacted at the direction of the Governor, take effect immediately. They give DLI the authority to cite businesses for being open or for operating in a way that is purposely defying the phased-in approach and, as a result, putting their workers at risk.
“We’re all in this together, and most businesses are doing the right thing for our state and our communities. Unfortunately, there are some that are choosing not to,” said DLI Director Joel Sacks. “The coronavirus is a known workplace hazard and businesses must follow the requirements to keep their workers and the public safe.”
Protecting worker safety and ensuring a level playing field
DLI will work with the state Emergency Operations Center to take in and respond to complaints about businesses ignoring pandemic closure orders and operating illegally. If employers are found to be defying the Governor’s order, they’ll be informed and directed to close or adjust operations immediately. If they do not, they’ll face a workplace safety citation that could carry a fine of nearly $10,000 or more.
Along with contacting businesses by phone and in writing, DLI will perform in-person spot checks on some of the businesses to make sure they are following through and complying with the Safe Start requirements. It’s not fair to employers who are following the law when other businesses defy it. DLI’s role will complement efforts by the Liquor and Cannabis Board and other state licensing and permitting agencies.
Airline safety for workers and passengers is critical if we are ever to return to prior levels of travel. Overall, airline travel has been reduced due to COVID-19 concerns by 90% or more. Delta airlines, one of the world’s largest air carriers and employers, has implemented many changes to protect both passengers and employees from the coronavirus.
We are sharing the information published by Delta for your information. You can see Delta’s safety protocols here. Other airlines may have different procedures and protocols – check with your carrier for more information.
Safety Starts at Check-In
When passengers check in, they are required to wear a mask until they reach their destination. Delta’s employees will be wearing them as well . Surfaces are wiped down throughout the day, starting with kiosks and baggage stations. Delta will have plexiglass shields in place at check-in and gate counters by the end of May. Passengers will be encouraged to maintain a safe distance with decals at check-in, at the gate and on all Delta-owned jet bridges.
Gate Areas and Onboard Aircraft
Delta gate areas and jet bridges are disinfected with electrostatic spraying. Before passengers board, Delta employees follow an extensive cleaning checklist with authority to hold the flight for additional cleaning if they aren’t satisfied. This includes safely sanitizing each aircraft with electrostatic spraying before every flight and wiping down tray tables and seatback screens.
Boarding will occur from back to front and be limited to 10 customers at a time to minimize contact with others. Snack bags with a sanitizing wipe will be distributed at boarding on select flights to reduce onboard service touch points. Every Delta flight is capped at 60 percent capacity and middle seats are blocked for protection.
Delta state that the air on all aircraft is completely recirculated 10 to 30 times per hour with fresh, outside air or through industrial-grade HEPA filters with similar performance to those used in hospital operating rooms and other highly sensitive environments. Announcements will also encourage passengers to take time when deplaning to create distance for those ahead to exit.
Airline Safety for Workers and Passengers
Airline safety for workers and passengers is equally important. Not only are all onboard employees sharing the risk to provide service, but other workers associated with plane travel are, as well. Baggage handlers, shuttle drivers, rental car agents, TSA screeners and every worker in between is sharing this risk to keep essential travel moving.
Many passengers are also employees, traveling for their own work or business needs.
More Assistance if Injury or Illness Occurs
Workers’ compensation benefits are possible for essential workers exposed to the coronavirus. This is possible for airline employees and may be true for some passengers, on a case-by-case basis.
If you have questions about a potential claim, feel free to contact our firm for assistance. We offer a free case analysis and are happy to discuss your specific circumstances with you.