CERTIFICATION OF ENROLLMENT

ENGROSSED SUBSTITUTE SENATE BILL 5115

Chapter 252, Laws of 2021

67TH LEGISLATURE

2021 REGULAR SESSION

LABOR STANDARDS—PUBLIC HEALTH EMERGENCIES

EFFECTIVE DATE: May 11, 2021

ENGROSSED SUBSTITUTE SENATE BILL 5115

AS AMENDED BY THE HOUSE

BySenate Labor, Commerce & Tribal Affairs (originally sponsored by Senators Keiser, Liias, Conway, Kuderer, Lovelett, Nguyen, Salomon, Stanford, and Wilson, C.)

AN ACT Relating to establishing health emergency labor standards; adding a new section to chapter 51.32 RCW; adding new sections to chapter 49.17 RCW; creating a new section; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1. A new section is added to chapter 51.32 RCW to read as follows:

(1) For frontline employees who are covered under this title, there exists a prima facie presumption that any infectious or contagious diseases that are transmitted through respiratory droplets or aerosols, or through contact with contaminated surfaces and are the subject of a public health emergency are occupational diseases under RCW 51.08.140 during a public health emergency.

(2) The frontline employee must provide verification, as required by the department by rule, to the department and the self-insured employer that the employee has contracted the infectious or contagious disease that is the subject of the public health emergency.

(3) This presumption of occupational disease may be rebutted by a preponderance of the evidence that:

(a) The exposure to the infectious or contagious disease which is the subject of the public health emergency occurred from other employment or nonemployment activities; or

(b) The employee was working from the employee's home, on leave from the employee's employment, or some combination thereof, for the period of quarantine consistent with recommended guidance from state and federal health officials for the disease immediately prior to the employee's injury, occupational disease, or period of incapacity that resulted from exposure to the disease which is the subject of the public health emergency.

(4)(a) RCW 51.32.090(7) does not apply to an occupational disease under this section except that no worker shall receive compensation for or during the day on which the occupational disease was contracted. For the purposes of this subsection (4), the day on which the occupational disease was contracted is whichever date occurs first of the following:

(i) The date that the worker first missed work due to symptoms of the infectious or contagious disease;

(ii) The date the worker was quarantined by a medical provider or public health official; or

(iii) The date the worker received a positive test result confirming contraction of the infectious or contagious disease.

(b) If leave or similar benefits are paid to the frontline employee as part of a federal or state program for these employees during the public health emergency, temporary total disability benefits are not payable for the same period of time covered by the federal or state program.

(5) When calculating assessments due to the department for which total claim costs are the basis, self-insured employers and self-insurance hospital groups formed under RCW 51.14.150 and 51.14.160 may deduct the cost of payments made under this section from the total of all claim costs reported.

(6) Costs of the payments under this section shall not affect the experience rating of employers insured by the state fund.

(7) As used in this section:

(a) "Assisted living facility" has the same meaning as in RCW 18.20.020.

(b) "Farm work" means work performed on a farm, in the employ of any person, in connection with the cultivation of the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and furbearing animals and wildlife, or in the employ of the owner or tenant or other operator of a farm in connection with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment. For the purposes of this subsection, "farm work" includes floriculture.

(c) "Food distribution work" means work where the primary duties include transporting food from food producers or manufacturers to food warehouses or food service operators and retailers.

(d) "Food manufacturing work" means work performed for an employer whose North American industry classification code is within "311."

(e) "Food processing work" means work handling or processing of any food in any manner of preparation for sale for an employer required to be licensed by the department of agriculture under chapter 69.07 RCW.

(f) "Frontline employee" includes the following employees:

(i) First responders, including law enforcement officers, firefighters, emergency medical service providers, paramedics, and ambulance drivers. "Firefighters" includes wildland firefighters when performing wildfire suppression or other emergency duties under the incident command system if the firefighter has in-person interaction with the general public or other firefighters as part of their job duties;

(ii) Employees performing food processing, food manufacturing, food distribution, farm, and meat packing work;

(iii) Maintenance, janitorial, and food service workers at any facility treating patients diagnosed with the infectious or contagious disease that is the subject of the public health emergency;

(iv) Drivers and operators employed by a transit agency or any other public entity authorized under state law to provide mass transportation services to the general public;

(v) Employees working at a child care facility licensed by the department of children, youth, and families under chapter 43.216 RCW, if the employee has in-person interaction with children or other members of the general public as part of their job duties;

(vi) Employees employed by a retail store that remains open to the general public during the public health emergency, if the employee has in-person interaction with the general public as part of their job duties or has in-person interaction with other employees. For the purposes of this subsection, "retail store" means a business whose North American industry classification code is within "44-45";

(vii) Employees employed by a hotel, motel, or other transient accommodation licensed under chapter 70.62 RCW that remains open to the general public during the public health emergency, if the employee has in-person interaction with the general public as part of their job duties or has in-person interaction with other employees;

(viii) Employees employed by a restaurant, if the employee has in-person interaction with the general public as part of their job duties or works in the kitchen of the restaurant and has in-person interaction with other employees. For the purposes of this subsection, "restaurant" has the same meaning as in RCW 66.04.010;

(ix) Home care aides certified under chapter 18.88B RCW and home health aides that provide services under chapter 70.126 RCW that primarily work in the home of the individual receiving care;

(x)(A) Corrections officers and correctional support employees working at a correctional institution.

(B) For the purposes of this subsection (7)(f)(x):

(I) "Correctional institution" has the same meaning as in RCW 9.94.049.

(II) "Corrections officer" means any corrections agency employee whose primary job function is to provide custody, safety, and security of prisoners in jails and detention facilities.

(III) "Correctional support employee" means any employee who provides food services or janitorial services in a correctional institution;

(xi) Educational employees, including classroom teachers, paraeducators, principals, librarians, school bus drivers, and other educational support staff, of any school district, or a contractor of a school district, that are required to be physically present at a school or on the grounds of a school where classes are being taught in person, in a transportation vehicle necessary for school operations, or in the home of a student as part of their job duties, if the employee has in-person interaction with students, a student's family members, or other employees as part of their job duties;

(xii) Employees of institutions of higher education that are required to be physically present on campus when classes are being taught in person, if the employee has in-person interaction with students or the general public as part of their job duties. For the purposes of this subsection, "institution of higher education" has the same meaning as in RCW 28B.10.016;

(xiii) Employees employed by a public library that remains open to the general public during the public health emergency, if the employee has in-person interaction with the general public as part of their job duties or has in-person interaction with other employees. For the purposes of this subsection, "public library" means a library covered by chapter 27.12 RCW.

(g) "Meat packing work" means work slaughtering animals and processing and packaging meat products for sale and the rendering of animal by-products.

(h) "Nursing home" means a nursing home licensed under chapter 18.51 RCW.

(i) "Public health emergency" means a declaration or order concerning any infectious or contagious diseases, including a pandemic and is issued as follows:

(i) The president of the United States has declared a national or regional emergency that covers every county in the state of Washington; or

(ii) The governor of Washington has declared a state of emergency under RCW 43.06.010(12) in every county in the state.

(j) "School" has the same meaning as in RCW 28A.210.070.

NEW SECTION.  Sec. 2. A new section is added to chapter 49.17 RCW to read as follows:

(1) During a public health emergency:

(a) An employer with more than 50 employees at a workplace or worksite, within 24 hours of confirming that 10 or more of their employees at the workplace or worksite in this state have tested positive for the infectious or contagious disease that is the subject of the public health emergency, must report the positive tests to the department in a form prescribed by the department.

(b) The department must consult with the department of health on the infectious or contagious disease that is the subject of the public health emergency:

(i) Before issuing regulatory guidance, rules, directives, or orders for health care facilities under this section; and

(ii) When investigating health care entities and issuing citations under this section.

(c) The report required in (a) of this subsection may not include any employee names or personal identifying information.

(2) The department may use the reports in subsection (1) of this section to identify potential clusters of infections at specific workplaces or industries and investigate workplaces for violations of this chapter.

(3) During a public health emergency, the name, email and residential addresses, license plate number, and other personally identifiable information regarding employees of the department are exempt from disclosure under chapter 42.56 RCW to the extent that the disclosure would violate their right to privacy or pose a risk to their personal safety or security.

(4) This section does not require an employee to disclose any medical condition or diagnosis to their employer.

(5) This section does not alter or eliminate any other reporting obligations an employer has under state or federal law.

(6)(a) During a public health emergency, no employer may discharge, permanently replace, or in any manner discriminate against an employee who is high risk as a result of the employee:

(i) Seeking accommodation that protects them from the risk of exposure to the infectious or contagious disease; or

(ii) If no accommodation is reasonable, utilizing all available leave options, including but not limited to leave without pay and unemployment insurance, until completion of the public health emergency or accommodation is made available.

(b) This subsection (6) does not alter or diminish any existing remedy available to the worker under current state or federal law.

(c) For the purposes of this subsection (6), "an employee who is high risk" means an employee who:

(i) Due to age or an underlying health condition, is at a high risk of severe illness from the disease that is the subject of the public health emergency, as defined by the centers for disease control and prevention; and

(ii) A medical provider has recommended the employee's removal from the workforce because of their high risk of severe illness.

(7) For the purposes of this section, "public health emergency" means a declaration or order concerning any infectious or contagious diseases, including a pandemic and is issued as follows:

(a) The president of the United States has declared a national or regional emergency that covers every county in the state of Washington; or

(b) The governor of Washington has declared a state of emergency under RCW 43.06.010(12) in every county in the state.

NEW SECTION.  Sec. 3. A new section is added to chapter 49.17 RCW to read as follows:

(1) During a public health emergency, if an employer receives a notice of potential exposure to the infectious or contagious disease that is the subject of the public health emergency, the employer must, within one business day of potential exposure:

(a) Provide written notice to all employees, and the employers of subcontracted employees, who were on the premises at the same worksite as the qualifying individual that they may have been exposed to the infectious or contagious disease. The written notice must be made in a manner the employer normally uses to communicate employment-related information. Written notice may include, but is not limited to, personal service, email, or text message if it can reasonably be anticipated to be received by the employee within one business day of sending and must be in both English and the language understood by the majority of the employees; and

(b) Provide a written notice to the exclusive representative, if any, of employees under this subsection (1).

(2) The written notice under subsection (1) of this section may not include any employee names or personal identifying information.

(3) This section does not alter or eliminate any other reporting obligations an employer has under state or federal law.

(4) This section does not require an employee to disclose any medical condition or diagnosis to their employer.

(5) This section does not apply to employers who are health care facilities as defined in RCW 9A.50.010. For employees of health care facilities with known or suspected high-risk exposure, notification to the employee, and with the employee's authorization, to their union representative, if any, by the facility must occur within 24 hours of confirmed exposure.

(6) For the purposes of this section:

(a) "Notice of potential exposure" means any of the following:

(i) Notification to the employer from a public health official or licensed medical provider that an employee was exposed to a qualifying individual at the worksite;

(ii) Notification to the employer from an employee, or their emergency contact, that the employee is a qualifying individual;

(iii) Notification through a testing protocol of the employer that the employee is a qualifying individual.

(b) "Public health emergency" means a declaration or order concerning any infectious or contagious diseases, including a pandemic and is issued as follows:

(i) The president of the United States has declared a national or regional emergency that covers every county in the state of Washington; or

(ii) The governor of Washington has declared a state of emergency under RCW 43.06.010(12) in every county in the state.

(c) "Qualifying individual" means any person who has:

(i) A positive laboratory test for the infectious or contagious disease that is the subject of the public health emergency;

(ii) A positive diagnosis of the infectious or contagious disease that is the subject of the public health emergency by a licensed health care provider;

(iii) An order to isolate by a public health official related to the infectious or contagious disease that is the subject of the public health emergency; or

(iv) Died due to the infectious or contagious disease that is the subject of the public health emergency, in the determination of a local health department.

(d) "Worksite" means the building, store, facility, agricultural field, or other location where the qualifying individual worked. "Worksite" does not include any buildings, floors, or other locations of the employer that the qualifying individual did not enter.

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