Effective Date of Rule: May 9, 2021.
Purpose: Chapter 246-358 WAC, Temporary worker housing, the department of health (DOH) in conjunction with the department of labor and industries (L&I) continue to respond to the novel coronavirus disease 2019 (COVID-19) pandemic. DOH and L&I are adopting revisions to the initial emergency rule. DOH and L&I filed the initial emergency rules on May 13, 2020, WSR 20-11-024 and 20-11-025 respectively. As the pandemic continues to impact residents of Washington state and temporary worker housing occupants, and in response to the governor's guidance, DOH and L&I filed a second emergency rule on September 10, 2020, WSR 20-19-048 and 20-19-049, and a third emergency rule on January 8, 2021, WSR 21-03-012 and 21-03-013, to protect occupants from COVID-19 hazards in licensed temporary worker housing.
This emergency rule continues the requirements under the previous emergency rules that operators: (1) Educate occupants in a language or languages understood by the occupants on COVID-19; (2) provide occupants cloth face coverings; (3) ensure physical distancing of occupants when at housing sites, which includes all cooking, eating, bathing, washing, recreational, and sleeping facilities; (4) with the exception of group shelters, prohibit the use of the top of bunk beds; (5) ensure the ventilation requirements are met, including specific requirements for mechanical ventilation systems or that windows are open in buildings without mechanical ventilation; (6) ensure frequent cleaning and disinfecting of surfaces; (7) identify and isolate occupants with suspect and confirmed positive cases; (8) ensure isolation requirements are met; (9) report to L&I division of occupational safety and health (DOSH) within twenty-four hours whenever symptomatic or COVID-19 positive workers are placed in isolation; and (10) ensure any changes made to the revised temporary worker housing management plan are submitted to DOH.
This emergency rule will continue to include an option for group shelters. A group shelter is where a cohort of up to fifteen occupants stay together and separated from others for housing, work, and transportation. The maximum number of occupants, fifteen, will not change. All dwelling units, facilities, and services must be only used by the group shelter members. If the operator is not the employer, the operator must ensure the employer will follow the group shelter requirements. Under the group shelter options, both the top and bottom bunk of bunk beds may be used, although the occupants must sleep head to toe.
(1) Allows multiple fully vaccinated group shelters to share common areas, including kitchens and bathrooms, at the same time with physical distancing and masks use. Also allows multiple fully vaccinated group shelters to be transported together with occupants of other fully vaccinated group shelters when using appropriate personal protective equipment.
(2) Revises the requirements for licensed health care professionals monitoring of occupants in isolation. Including:
(a) Visits are now required to be daily rather than twice daily and may be performed in-person or through telemedicine with a review of symptoms, temperature, and pulse oximetry;
(b) For telemedicine visits, the operator must provide a pulse oximeter and thermometer for the occupants' use and ensure there is a working telephone with a clear connection;
(c) Adds language to ensure that interpretative services are provided when needed; and
(d) Removes the requirements that isolation facilities be located within specified distances to key medical services but ensures the health care professional conducting the visits knows the distance from the isolation facilitates to the key medical services; language is added to ensure that operators facilitate transportation for occupants in isolation to in-person medical evaluation or treatment when specified or recommended by a medical provider or upon request of the occupant.
(3) Clarifies that all occupants, except those who are fully vaccinated, must be quarantined when exposed to COVID-19. All workers in quarantine who develop symptoms or test positive must be moved to isolation.
(4) Clarifies the requirement to allow entry by community health workers and community-based outreach workers by adding definitions.
(5) Makes other changes for consistency and clarity.
Both L&I and DOH each filed a Preproposal statement of inquiry (CR-101) on September 10, 2020, WSR 20-19-047 and 20-10-050, regarding permanent amendments to the existing permanent rules to address hazards from COVID-19 or other outbreaks of airborne infectious diseases. Some amendments made as part of the emergency rules will be considered for permanent rule making. For example, changes to ventilation requirements, and isolation requirements during an outbreak.
Citation of Rules Affected by this Order: New WAC 246-358-002.
Reasons for this Finding: DOH and L&I continue to take action to help prevent the spread of COVID-19 and respond to the Governor's Proclamation 20-25, Stay Home, Stay Healthy, and the amendments transitioning to a phased-in approach to reopening Washington state under the current Proclamation 20-25.12 "Healthy Washington - Roadmap to Recovery." Under Proclamation 20-25, agriculture is an essential business and must comply with the social/physical distancing and sanitation requirements of DOH, L&I, and the Centers for Disease Control and Prevention. The existing permanent temporary worker housing rules have specific requirements for the minimum distance between beds that is inconsistent with social/physical distancing requirements requiring emergency rules to, at a minimum, address these requirements. The initial emergency rule was adopted to help prevent the spread of COVID-19. Since the adoption of the first emergency rule, the governor issued Proclamation 20-57 and 20-57.1 addressing workplace and transportation requirements for COVID-19 specific to the agriculture industry. Since the emergency rule was in place, the requirements covered by the rule were not included in the governor's order.
As new information, data, and science becomes available, it is important that DOH and L&I continue to update and immediately amend existing rules to help prevent the spread of COVID-19. This emergency rule is necessary for the preservation of public health, safety, and general welfare of occupants of temporary worker housing for the 2021 growing season. The governor's Stay Home, Stay Healthy order as amended to the Roadmap for Recovery and Proclamation 20-57.1 are currently in effect, and observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest and the governor's order.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at the Request of a Nongovernmental Entity: New 1, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's own Initiative: New 0, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.
Number of Sections Adopted using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 1, Amended 0, Repealed 0.
Date Adopted: May 7, 2021.
for Umair A. Shah, MD, MPH
(1) The operator of temporary worker housing (TWH) under this chapter must implement the following steps to protect occupants from the hazards posed by SARS-CoV-2, the virus that causes coronavirus disease 2019 (COVID-19):
(a) Educate occupants and allow entry of community workers:
(i) The operator must educate occupants in a language or languages understood by the occupants on COVID-19, including: How the virus is spread and how to prevent virus spread including the importance of handwashing, the use of cloth face coverings, proper respiratory etiquette, and the importance of prompt sanitizing of frequently touched items; common symptoms and risk factors; and what to do if they develop symptoms.
(ii) The operator must also allow entry of community health workers and community-based outreach workers to provide additional information. For the purposes of this section, a community health worker is defined as a frontline public health worker who is a trusted member of and/or has an unusually close understanding of the community served. This trusting relationship enables the worker to serve as a liaison/link/intermediary between health/social services and the community to facilitate access to services and improve the quality and cultural competence of service delivery. A community-based outreach worker is defined as a legal aid representative, a union representative, or a representative from other community-based advocacy organizations.
(b) Conspicuously post information regarding the facility's health and safety policies, how to identify symptoms, to whom to report if not feeling well, and where and how to secure medical treatment - all in a language commonly understood by the occupants.
(c) Provide at no cost an adequate number of cloth face coverings for occupants to use in accordance with Washington department of health guidelines, or as required by Washington department of labor and industries (L&I) safety rules. The operator must instruct occupants to use cloth face coverings in public and at housing as recommended in the public health orders.
(d) Develop and implement a physical distancing plan for maintaining six feet of separation between occupants when at housing sites which includes all cooking, eating, bathing, washing, recreational, and sleeping facilities.
(i) In order to facilitate physical distancing, the operator must provide additional temporary cooking, bathing, washing, and toilet facilities.
(ii) Sleeping quarters. The operator must ensure:
(A) Beds are spaced at least six feet apart between frames in all directions and arranged so that occupants sleep head to toe; OR
(B) Beds are separated by a bed length, floor to near ceiling temporary nonpermeable barrier (e.g., plexiglass, plastic sheeting, etc.) placed perpendicular to wall such that a thirty-six inch minimum aisle exists between the bed and the temporary barrier and occupants sleep head toward wall. The temporary barriers:
(I) Must be made of fire resistant or fire retardant treated material;
(II) Do not impede required egress;
(III) Do not compromise ventilation/air flow; and
(IV) Are cleaned at least daily.
(C) Except as allowed under (f) of this subsection, only the bottom bed of bunk beds may be used.
(iii) The operator must use physical barriers (e.g., plastic shields) for fixtures such as sinks where occupants may come in close contact for short periods of time. Any barriers placed near cooking equipment must be fire retardant.
(iv) The operator must provide additional facilities or services that meet the requirements of this chapter if needed to ensure social distancing in common areas, such as additional refrigeration or portable sinks.
(v) The operator must discourage occupants from visiting buildings or sleeping quarters that are not their assigned living spaces, to minimize potential cross-contamination.
(i) For the purposes of this section "mechanical ventilation" means the active process of supplying air to or removing air from an indoor space by powered equipment such as motor-driven fans and blowers but not by devices such as wind-driven turbine ventilators and mechanically operated windows.
(ii) If the TWH facility or building has a mechanical ventilation system, the owner shall maintain it according to the manufacturer's specifications and operate the system to provide optimal fresh and filtered air. The operator shall have building maintenance staff or HVAC contractors set their existing mechanical ventilation system to increase ventilation or the percentage of outside air that circulates into the system and verify the following:
(A) All HVAC systems are fully functional, especially those that have been shut down or operating at reduced capacity during the pandemic or off season.
(B) Use HVAC system filters with minimum efficiency reporting value (MERV) rating of at least 13. If the HVAC system does not support MERV 13 filters, use the highest MERV rating filters supported by the HVAC system.
(C) The maximum use of the HVAC system's outdoor air intake, making sure that the exhaust air is not pulled back into the building through the HVAC air intakes or open windows. Reductions in outside air intake may be made when there are hazardous external conditions including, but not limited to, wildfire smoke.
(D) The appropriate personal protective equipment (particulate respirator, eye protection, and disposable gloves) are used when changing filters.
(E) Maintenance checks occur at the beginning of each growing season when preparing buildings to be reopened. Additional checks occur based on manufacturer recommendations (usually quarterly or annually).
(F) Keep a maintenance log including documentation of filter selection (include selection reason if less than MERV 13 filtration is used), filter conditions, and outside air settings. Operators shall make records required by this section available to the state agency representatives upon request.
(iii) The operator must instruct residents in buildings with mechanical ventilation to:
(A) Turned on mechanical ventilation systems (i.e., mini split system, window units, HVAC) or open windows whenever the TWH facility or building is occupied.
(B) Temporarily shut down the system when pesticides are being applied in the vicinity of the building.
(C) Operate exhaust fans in restrooms continuously at maximum capacity.
(iv) The operator shall ensure that filters in any ventilation system used in a TWH facility or building are clean and in good repair.
(v) In buildings without mechanical ventilation systems, windows must be open whenever occupied. Windows must be closed when conditions outside of the building could pose a hazard to occupants including, but not limited to, during dust storms or when pesticides are being applied to fields near the building. The operator must instruct residents to remove or redirect personal fans to prevent blowing air from one worker to another.
(f) Group shelters. If the TWH is set up to accommodate a group shelter and a group shelter is formed, the operator must designate which occupants are part of each group and maintain the same occupants in each group shelter. "Group shelter" means a dwelling unit or cluster of dwelling units with sleeping facilities for up to fifteen occupants that includes toilet facilities, bathing facilities and, if applicable, food preparation and cooking facilities. All facilities and services within the group shelter are for the sole use of the occupants of the group shelter and must be marked as such.
(i) Sleeping quarters. In group shelters, the operator must:
(A) Arrange beds so that the heads of beds are as far apart as possible – at least six feet apart. Both beds of bunk beds may be used. Bunk bed occupants must sleep head to toe.
(B) Maintain egress requirements.
(C) Provide all occupants suitable storage space including personal storage space for clothing and personal articles. Ensure all or a portion of the space is enclosed and lockable.
(ii) Common areas. In group shelters, the operator must instruct occupants to maintain physical distancing and wear cloth face coverings whenever possible.
(iii) Multiple group shelters. More than one group shelter may share facilities and common areas as long as:
(A) The facilities and areas are used by only one group shelter at a time;
(B) Adequate time is given to each group to accomplish daily activities;
(C) All high contact surfaces are sanitized between each group; and
(D) Schedules are shared and conspicuously posted.
(iv) Transportation and work. To utilize the group shelter option, the operator must ensure that members of each shelter group stay together and separate from other groups, occupants, or workers, including during transportation and work. If the operator is not the employer, the operator must ensure the employer will follow the group shelter requirements.
(v) The operator must encourage each group shelter to designate one or two occupants to run errands if items cannot be provided by the operator. These designated occupants can be the main contact for procuring groceries or other items for the group shelter in order to limit public contact and potential disease transmission.
(vi) The operator must quarantine or test all members of a group shelter if a member of the group shelter develops symptoms of COVID-19, as directed by the local health agency.
(g) A fully vaccinated group shelter is one where all occupants are themselves fully vaccinated. Occupants who are vaccinated against COVID-19 by a two-dose mRNA vaccine (such as Moderna and Pfizer), or a single dose vaccine (such as Johnson & Johnson), are considered "fully vaccinated" two weeks after the final dose of vaccine (the second dose for a two-dose regimen, or the single dose for a single-dose regimen).
(i) Vaccination status must be determined by the housing operator. The following are acceptable as proof of full vaccination: A vaccination card (which includes name of person vaccinated, type of vaccine provided, and date last dose administered); or a photo of a vaccination card as a separate document; or a photo of the attendee's vaccine card stored on a phone or electronic device; or documentation of vaccination from a health care provider electronic health record or state immunization information system record. Self-reported vaccination records that are not verified by a health care provider cannot be accepted.
(ii) The vaccination records must be provided on request of the department.
(iii) Fully vaccinated group shelters may share common areas, including kitchens and bathrooms. Physical distancing and masks are required in these areas.
(iv) Occupants of fully vaccinated group shelters may be transported together with occupants of other fully vaccinated group shelters using appropriate personal protective equipment.
(v) Operators must maintain a list of occupants assigned to fully vaccinated group shelters, including the date each occupant was assigned and the date each occupant's vaccination status was verified.
(h) Clean and disinfect surfaces. The operator must:
(i) Clean and disinfect common areas on a regular schedule, at least as frequently as required by this chapter.
(ii) Wipe down and disinfect surfaces that are touched by multiple individuals at least daily using an EPA-approved disinfectant or diluted bleach solution.
(iii) Provide adequate supplies and instructions to occupants for cleaning and disinfecting of living spaces of dwelling units, family shelters, and group shelters. Occupants must be able to clean and disinfect frequent touched surfaces, bathroom, and cooking areas as needed. Chemicals used for cleaning and disinfecting must be labeled as to its intended purpose in a language commonly understood by the occupants using labeling requirements in chapter 296-901 WAC, Globally harmonized system for hazard communication.
(iv) Ensure adequate supplies of single-use soap and paper towels at all sinks to allow for frequent handwashing. Portable handwashing stations or hand sanitizer may be provided in addition to required facilities.
(v) Provide training in a language or languages understood by contracted workers regarding COVID-19 cleaning, disinfecting, and sanitizing protocols for any contracted cleaning labor prior to their arrival to clean temporary worker housing. In addition to any personal protective equipment required under L&I rules to perform the cleaning activities, provide and require that those contracted workers use disposable gloves and wear cloth face coverings covering nose and mouth while working at the site.
(vi) Clean and disinfect areas where occupants with suspect COVID-19 exposure have been according to CDC guidelines and before the space is used by others.
(2) COVID-19 screening and isolation of suspect SARS-CoV-2 and positive SARS-CoV-2 cases.
(a) The operator must develop and implement a plan to identify and isolate occupants with suspect SARS-CoV-2 and positive SARS-CoV-2, including:
(i) A process to screen occupants for symptoms of COVID-19 as identified by the centers for disease control and prevention (CDC), including fever, cough, shortness of breath, difficulty breathing, chills, shaking with chills, muscle pain, headaches, and loss of taste or smell. The operator must provide each occupant with a thermometer or must designate and train a person to use a "no touch" or "no contact" thermometer to check all occupants' temperatures daily. All thermometers must be properly sanitized between each use or each day. Any worker with a temperature of 100.4°F or higher is considered to have a fever.
(ii) A "suspect SARS-CoV-2 case" is defined as a person with signs and symptoms compatible with COVID-19 above who has not been tested yet, or refuses testing. Upon identification of suspect SARS-CoV-2 cases, the operator must contact the local health officer immediately as required under WAC 296-307-16190 and provide transportation for any medical evaluation or treatment. Ensure individuals providing transportation have appropriate personal protective equipment.
(iii) Isolate suspect SARS-CoV-2 cases with sleeping, eating, and bathroom accommodations that are separate from others. If the suspect occupant resides in a room with family members, the sick occupant will have the option to isolate with the family members.
(iv) Other individuals who have been in close contact of the symptomatic suspect SARS-CoV-2 case or confirmed SARS-CoV-2 positive must be quarantined, and remain separated from others in the housing. Individuals who have been fully vaccinated per CDC guidelines are not required to quarantine. Members of a group shelter will quarantine together. Individuals may leave quarantine when they meet CDC guidance for quarantine or when released from quarantine by the local health officer. Anyone becoming symptomatic or testing positive for SARS-CoV-2 during quarantine will be moved to isolation.
(v) Any occupant in quarantine must continue to be screened for symptoms of COVID-19 as described in (a)(i) in this subsection.
(vi) Confirmed SARS-CoV-2 positive cases must be isolated and only housed with other confirmed cases and must have separated bathroom, cooking and eating facilities from people who have not been diagnosed with COVID-19. If the confirmed occupant resides in a room with family members, the confirmed occupant will have the option to isolate with family members.
(vii) The operator must report suspect SARS-CoV-2 cases or SARS-CoV-2 positive TWH occupants in isolation to the department of labor and industries' division of occupational safety and health (DOSH) within twenty-four hours after placement. This notification can be made by telephone to the department of labor and industries toll-free telephone number, 1-800-4BE-SAFE (1-800-423-7233), or to DOSH by any other means.
(b) The operator must ensure appropriate isolation facilities for suspect SARS-CoV-2 cases or SARS-CoV-2 positive TWH occupants, including the following:
(i) Daily well-being checks must be done in person by the employer or housing operator.
(ii) Ensure that a licensed health care professional visits or assesses occupants daily, at the employer's expense to perform a health check for each individual in isolation. Evaluations by licensed health care providers may be performed in-person, using audio telemedicine, or video telemedicine. At a minimum, the health care professional must review symptoms; temperature; oxygen saturation via pulse oximetry; and determine if additional medical services are needed, such as an in-person evaluation or treatment. If the licensed health care professional is not already familiar with the occupant's medical history, the licensed health care professional must obtain relevant medical history from the occupant.
(iii) Provide the health care provider performing the evaluation with information on the location of the isolation facilities and what the distance is from isolation facility and the nearest advanced life support emergency medical services, an emergency room with ventilator capability, and outpatient nonemergency medical services.
(iv) For evaluations done by telehealth, the operator must ensure each occupant in isolation has or is provided a working telephone with a clear connection. The operator must also provide the occupant with a U.S. Food and Drug Administration approved pulse oximeter and thermometer with written and verbal instructions on use and interpretation of their results in the occupant's preferred language.
(v) If an occupant prefers not to self-operate the pulse oximeter, and/or thermometer, the employer must ensure that they have competent assistance.
(vi) Interpretation services must be provided when the medical professional is not fluent in the occupant's preferred language.
(vii) For the purposes of this subsection, a licensed health care professional means:
(A) An individual licensed under chapter 18.79
RCW as a registered nurse;
(B) An individual licensed under chapter 18.71
RCW as a physician;
(C) An individual licensed under chapter 18.71A
RCW as a physician assistant;
(D) An individual licensed under chapter 18.57
RCW as an osteopathic physician;
(E) An individual licensed under chapter 18.57A
RCW as an osteopathic physician assistant;
(F) An individual licensed under chapter 18.79
RCW as an advanced registered nurse practitioner; and
(G) An individual licensed under chapter 18.71
RCW as a paramedic or emergency medical technician (EMT) and authorized to monitor suspect SARS-CoV-2 cases or SARS-CoV-2 positive individuals as authorized by the local medical program director, EMS administrators, and fire chief while working in their agency/jurisdiction.
(H) A medical assistant-certified (MA-C) or medical assistant-registered (MA-R) credentialed under chapter 18.360
RCW and under the delegation and supervision of a licensed health care practitioner.
(I) Facilitate transportation for in-person medical evaluation or treatment when specified or recommended by a medical provider or upon request of the occupant.
(viii) Guarantee that the occupants have ready access to telephone service to summon emergency care.
(ix) Provide occupants with information about paid leave and workers compensation.
(x) Permit access to other medical professionals who offer health care services in addition to the licensed health care professional(s) contracted to provide health checks.
(xi) The operator must provide food and water.
(xii) If the operator uses other isolation facilities, such as hotels, the operator must verify that the isolation facility complies with requirements of this section prior to transporting workers to the facility. Isolated workers may also be housed in county or state run isolation centers.
(3) The operator must revise the facility's written TWH management plan to include implementation of the requirements in this section, as applicable.
(a) The plan must identify a single point of contact at the TWH for COVID-19 related issues.
(b) The operator must share the plan with all occupants on the first day the plan is operational or the first day the occupant arrives at the TWH. The operator must designate a person that will ensure all occupants are aware of all aspects of the plan and be available to answer questions.
(c) If changes are made to the TWH management plan, the operator must submit the revised TWH management plan to the state department of health within ten calendar days of the effective date of this section.
(d) Failure to submit a revised plan or properly implement the requirements of this section may result in administrative action, including license suspension or fines.
(4) Consistent with WAC 246-358-040(1), an operator may request a temporary variance from the requirements of this section when another means of providing equal protection is provided.
(5) In the event that any provisions of this section are in conflict with other regulations in this chapter, such other regulation shall be deemed superseded for purposes of this chapter.