New State Law Requirements For Health Care Worker Protections During A Declared State of Emergency

Change of Law: Hospital Action Required   

Purpose

The purpose of this bulletin is to inform hospitals and health systems about legislation enacted in the 2021 legislative session requiring additional worker protections during the currently declared state of emergency for the COVID-19 pandemic, as well as in the event of any future public health emergencies.  These new laws, ESSB 5115 and ESSB 5190, are now in effect.

Due to the COVID-19 pandemic, one significant focus of policymakers during the 2021 state legislative session was to establish additional protections in law for workers.  Additionally, many legislators had an interest in establishing worker protections that would be in place in the event of a future public health emergency.  WSHA worked extensively on behalf of our members to mitigate significant concerns and improve these bills so they are more workable for hospitals and health systems.

This bulletin addresses the following topics:

Applicability and Scope

The new worker protection laws are broadly applicable and will require action by all hospitals and health systems operating during a public health emergency.  WSHA recommends careful review of this bulletin and the new laws to determine specific applicability.  Most of the requirements include broad definitions applicable to most health care workers and facilities.  Specifics on the scope of each area of policy are provided below:

Applicability By Topic

1. Changes to Unemployment Insurance (UI) Benefits for Health Care Workers: This change applies to any “health care facility” that employs “health care workers” who are directly involved in the delivery of health services (ESSB 5190).

• • “Health care facility” is broadly defined under RCW 9A.50.010. This non-exhaustive list explicitly includes a hospital, clinic, health care provider’s office, HMO, diagnostic or treatment center, neuropsychiatric or mental health facility, hospice, or nursing home.
  • “Health care worker” means an individual who worked at a health care facility (as defined above) and was directly involved in the delivery of health services.

2. Presumption of Occupational Disease Under Workers’ Compensation: There are two new statutes addressing the presumption of occupational disease for different populations of employees at hospitals and health systems – one for “health care employees” and one for “frontline employees.” The two prima facie presumptions have similar elements but are not identical.  WSHA and other stakeholders in the business community raised strong concerns about this lack of alignment with legislators, but it was not ultimately addressed.

One of the most significant distinctions between the two statutes is the standard for the employer to rebut the presumption (clear and convincing versus preponderance of the evidence).  More details about the presumptions are provided later in this bulletin.

The following information addresses the types of employees covered by each respective bill:

• • Health care employees: The prima facie presumption under ESSB 5190 applies to all health care employees who are covered under Title 51 RCW, Washington’s industrial insurance title. “Health care employee” is broadly defined to include an employee of any health care facility or other organization that provides emergency or medical services and is likely or has contact with a person who has been exposed to the disease that is the subject of the public health emergency.  In this context, “health care facility” has the same meaning under RCW 9A.50.010.  The standard to rebut the presumption for health care employees is clear and convincing evidence.
  • Frontline employees: The prima facie presumption under ESSB 5115 applies to all “frontline employees” covered under Title 51 RCW. The definition of frontline employee does not include health care employees.  However, there may be other types of employees who fall under this definition, such as emergency medical service providers, paramedics, ambulance drivers, as well as maintenance, janitorial, and food service workers at any facility treating patients diagnosed with the disease that is the subject of the public health emergency.  The standard to rebut the presumption for frontline employees is preponderance of the evidence.              

3. Employer Reporting to L&I: This requirement provided in ESSB 5115 applies to all hospitals and health systems with more than 50 employees at a “workplace or worksite” during a public health emergency.  The requirements are added as a new section to Chapter 49.17 RCW, the Washington Industrial Safety and Health Act.

• • “Employee” under the Washington Industrial Safety and Health Act is defined as an employee of an employer who is “employed in the business of his or her employer whether by way of manual labor or otherwise and every person in this state who is engaged in employment of or who is working under and independent contract the essence of which is his or her personal labor for an employer under this chapter whether by way of manual labor or otherwise” (RCW 49.17.020).

• • “Workplace” under RCW 49.17.020 means “any plant, yard, premises, room, or other place where an employee or employees are employed for the performance of labor or service over which the employer has the right of access or control, and includes, but is not limited to, all workplaces covered by industrial insurance under Title 51 RCW, as now or hereafter amended.”

4. Requirements for High-Risk Employees: This applies to all hospitals and health systems as employers under Washington’s Industrial Safety and Health Act (Chapter 49.17 RCW). The statute includes a definition for “employer” under RCW 49.17.020 and the term applies broadly (see specific definition above).

• • ESSB 5115 provides a new definition for “an employee who is high risk” and “public health emergency” under this section, which is discussed in greater detail below.

5. Notifications to Employees: This applies to all hospitals and health systems as employers under Washington’s Industrial Safety and Health Act (Chapter 49.17 RCW). This section includes an exemption for employers who are health care facilities as defined in RCW 9A.50.010, and required health care facilities to continue a reporting process already in place in cases of suspected high-risk exposures.

Comment on the Definition of Public Health Emergency

Both ESSB 5115 and ESSB 5190 are applicable only during a declared public health emergency.  The requirements apply now during the COVID-19 pandemic and will apply during any future public health emergency. However, there are nuanced differences between the definitions of public health emergency in ESSB 5115 and ESSB 5190.  Additionally, in the UI benefit provisions of ESSB 5190, public health emergency is not explicitly defined.

Below are the locations of specific definitions for “public health emergency” throughout ESSB 5115 and ESSB 5190:

Recommendations

Review this bulletin and consult with your legal counsel, human resources professionals, risk managers, and other relevant subject matter experts to implement the various requirements under the new laws.

Overview

1. New Unemployment Insurance Benefits for Health Care Workers (ESSB 5190)

During a public health emergency, ESSB 5190 establishes a new UI benefit for certain health care workers in cases where they leave work to enter quarantine.

• • For this section, “health care worker” means an individual who worked at a health care facility defined under RCW 9A.50.010 and was directly involved in the delivery of health services.

• • The period of quarantine during which a health care worker can claim UI benefits is limited to the quarantine period “consistent with recommended guidance from the United States centers for disease control and prevention or subject to the direction of the state or local health jurisdiction because of exposure to or contracting the disease that is the subject of the declaration of the public health emergency.”   

• • Benefits paid to an individual who qualifies under these provisions are not charged to the experience rating account of any contribution paying employer.

2. Prima Facie Presumption of Occupational Disease for Workers’ Compensation

A. Health Care Employees (ESSB 5190)

During a public health emergency, for health care workers covered under Title 51 RCW (Industrial Insurance), there exists a prima facie presumption of occupational disease for workers’ compensation.  This means it is presumed if a health care worker is diagnosed with any infectious or contagious disease that is the subject of the public health emergency, it was contracted at work and is eligible for workers’ compensation.

   Key Definitions:

• • “Health care employee” is an employee of any health care facility or other organization that provides emergency or medical services, who has or is likely to have had direct contact with any person who has been exposed to or tested positive for the infectious disease that is the subject of the public health emergency.
  • “Health care facility” has the same meaning of RCW 9A.50.010 – broadly defined as a facility that provides health care services directly to patients (including, but not limited to: hospital, clinic, health care provider’s office, health maintenance organization, diagnostic or treatment center, neuropsychiatric or mental health facility, hospice, or nursing home).

• • “Public health emergency” see discussion above. As a reminder, this definition is not exactly the same as the definitions contained in ESSB 5115, so please review the specific definition for this section.  Additionally, this presumption takes effect on the day the national, regional, or state emergency is declared, and continues until the declaration is revoked. 

Rebuttal Standard – Clear and Convincing:

For an employer to rebut the prima facie presumption that the employee was infected at work, they must rebut this presumption by clear and convincing evidence, which is a very high standard.

To overcome the presumption, the law outlines that the employer must demonstrate by clear and convincing evidence, one of the following scenarios:

• • The exposure occurred from other employment or nonemployment activities, or
  • The employee was working from home or other location not under the employers’ control for the period immediately prior to the employee’s date of contracting the disease or period of incapacity due to the disease.

 Impact on Experience Rating and Self-Insured Employers:

 Costs of claims under this presumption will not affect the experience rating of employers insured by the state fund.  Employers who are self-insured for workers’ compensation also have some protections from this new requirement:

“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 RCW 51.14.160 may deduct the cost of payments made under this section from the total of all claim costs reported.”

B. Frontline Employees (ESSB 5115)

Similar to, but not the same as the prima facie presumption established for health care workers in ESSB 5190, there is also a new presumption of occupational disease in workers’ compensation for “frontline employees” during a public health emergency, under ESSB 5115.

WSHA anticipates the majority of hospitals and health systems will focus on the requirements established in the presumption in ESSB 5190 (discussed above).  However, it is important to review the language of the presumption created by ESSB 5115 to determine if any additional employees might be covered.

Key Definitions:

• • “Frontline employee” is an expansive list of workers across various industries but does not include health care workers. The definition of “frontline employees” does however, include numerous emergency responders, certain home care aides, as well as maintenance, janitorial, and food service workers at any facility treating patients diagnosed with the disease that is the subject of the public health emergency.

• • “Public health emergency” differs slightly from the definition contained in ESSB 5190. In particular, this definition emphasizes the emergency has been declared and covers all counties in the state of Washington.  See above discussion about different definitions of public health emergency (under “Scope”).

 Rebuttal Standard – Preponderance of the Evidence:

 The rebuttal standard for employers under the prima facie presumption for frontline workers is preponderance of the evidence.  This means the presumption may be rebutted if the employer can demonstrate it is more likely than not that the frontline employee did not contract the disease at work.

Impact on Experience Rating and Self-Insured Employers:

 Costs of payments under these provisions do not impact the experience rating of employers insured by the state fund.  The same protections exist for self-insured employers and self-insurance hospital groups (see above).

 Additional Helpful Information:

 Brief Note on Prima Facie Presumptions – One significant trend demonstrated with the passage of the workers’ compensation provisions in 2021 session is the legislature identifying in statute, specific circumstances to establish prima facie presumptions of occupational disease. Prior to passage of ESSB 5190 and ESSB 5115, only two prima facie presumptions existed in Washington law (RCW 51.32.185 (firefighters and fire investigators) and RCW 51.32.187 (Hanford site workers)).

• • Change to Workers’ Comp Settlements – The legislature passed a new law (SB 5046) allowing workers’ compensation settlements to be paid out as either a lump sum or on a structured basis. The new lump sum option is available immediately “at the option of the parties,” meaning any lump sum resolution must be agreed to by both the worker and the employer.  The legislation did not change the provisions in RCW 51.04.063 applicable to structured claim resolution agreements.

3. Employer Reporting to L&I (ESSB 5115)

During a public health emergency, employers with 50 or more employees at a workplace or worksite must report positive tests to L&I under certain circumstances.  The definition of “employee” is discussed above under “scope” and is an existing definition under the Washington Industrial Safety and Health Act (RCW 49.17.020).

When Reporting to L&I is Required:

• • Within 24 hours of confirming that 10 or more of their employees have tested positive for the infectious or contagious disease that is the subject of the public health emergency.
  • L&I will determine the form for this employer reporting.
  • L&I is granted the discretion to use these reports to identify potential clusters of infections at specific workplaces or industries, and also to investigate workplaces for violations.

WSHA successfully advocated for this section of ESSB 5115 to include language directing L&I to coordinate with the Department of Health (DOH) before issuing regulatory guidance, rules, directives, or orders for health care facilities under this section.  Also, L&I must consult with DOH when investigating health care entities and issuing citations under this section.

4. Requirements for High-Risk Employees: (ESSB 5115)

During a public health emergency, no employer may discharge, permanently replace, or discriminate in any manner against an employee who is high risk and seeks accommodations to protect themselves.  If no reasonable accommodation is available, the employee has the ability to utilize all available leave options, including, but not limited to, leave without pay and unemployment insurance, until an accommodation is made available or the end of the public health emergency.

Key Definition:

• •  “High-Risk Employee” means an employee who is at high risk due to age or an underlying health condition, (as defined by the CDC), and a medical provider has recommended the employee’s removal from the workplace due to their high risk of severe illness.

5.  Employee Notifications (ESSB 5115)

Employers who are health care facilities as defined under RCW 9A.50.010 are exempted from the employee notifications provided in ESSB 5115.  However, employees of health care facilities with known or suspected high-risk exposures must provide notification to the employee, and with the employee’s permission, notification to their union representative (if applicable) within 24 hours of confirmed exposure.

This provision was adapted from existing practices outlined in the Governor’s most recent proclamation on non-urgent procedures, effective December 3, 2020 (20-24.2).

Next Steps

Both ESSB 5115 and ESSB 5190 require rulemaking.  WSHA will continue to advocate for hospitals and health systems as this work progresses.  WSHA will also continue to keep our members informed of any significant updates on the rulemaking.

Background

Worker safety is a top priority for Washington hospitals, and this has been highlighted throughout the COVID-19 pandemic.  Balancing critical workforce needs to enable hospitals and health systems to have capacity to continue to serve our communities during a public health emergency – when they are needed the most – has been a large part of the advocacy around this legislation.

Through direct advocacy by WSHA members and partners in the stakeholder community, WSHA was able to secure several important modifications to this legislation to help mitigate impacts.  These provisions included:

ESSB 5115 (Health Emergency Labor Standards Act)

1. 1. • Ensuring L&I must consult with the state Department of Health under the section requiring employer reporting, before issuing regulatory guidance, rules, directives, or orders for health care facilities and when investigating health care entities and issuing citations.
      • Securing an exemption for health care facilities (as defined in RCW 9A.50.010) from employee notification provisions, and negotiating notification language directed to cover employees with known or suspected high-risk exposure, through a process consistent with the existing notification language in the Governor’s proclamation (20-24.2) on nonurgent procedures, effective December 3, 2020.
      • Adding language to the workers’ compensation presumption for frontline workers to focus on infectious or contagious diseases that are transmitted through respiratory droplets, aerosols, or through contact with contaminated surfaces.
      • Helping to lower the standard from clear and convincing evidence to preponderance of the evidence for employers to rebut the presumption of occupational disease for frontline employees.

ESSB 5190 (Health Care Worker Presumption)

1. 1. • Defining the period of quarantine health care workers are eligible for new unemployment insurance benefits as the amount of time consistent with recommended guidance from the U.S. Centers for Disease Control and Prevention or subject to the direction of state or local health jurisdiction.
      • Securing important protections for self-insured employers and self-insurance hospital groups under workers’ compensation presumption provisions.

References

1. • Health Emergency Labor Standards Act – ESSB 5115 (enacted 2021).
   • Washington State Department of Labor & Industries bulletin on Health Emergency Labor Standards Act (issued May 11, 2021).
   • Health Care Workers Presumptive Benefits Public Health Emergency – ESSB 5190 (enacted 2021).
   • Definition of “health care facility” for purposes of new unemployment insurance benefits in ESSB 5190 is defined under RCW 9A.50.010.
   • Workers’ Comp Claim Resolution Settlement Agreements – SB 5046 (enacted 2021).
   • Governor Inslee’s Non-Urgent Procedures Proclamation 20-24.2, effective December 3, 2020.