What Does the New HELSA Law Mean for Employers?

Client Alerts / June 2021

Since the beginning of the COVID-19 pandemic, we have fielded questions from employers across industries regarding whether or not an employee who catches COVID-19 at work can file for and receive workers’ compensation benefits. Setting aside the issue of whether the employee could actually prove that they contracted the disease at work, our answer has largely been “no,” with the exception of workers in the health care industry and other first responders.

But for many employers here in Washington, the answer may now be “yes.” The state legislature passed SB 5115, the Health Emergency Labor Standards Act (HELSA). The law applies to a wide range of workers and has two major components:

  • It establishes a rebuttable presumption for workplace transmission of COVID-19
  • It creates notice requirements for potential workplace exposure to COVID-19

“Frontline employees” include more than just “first responders.”

Although the law applies only to “frontline employees,” the statute includes a fairly broad definition of this term. For the purposes of HELSA, frontline employees include:

  • First responders such as law enforcement, firefighters, and paramedics
  • Employees performing food processing, food manufacturing, food distribution, farm, and meat packing work
  • Maintenance, janitorial, and food service workers at any facility treating patients with infectious or contagious disease subject to a public health emergency
  • Drivers and operators employed by transit agencies
  • Child-care facility employees who have in-person interaction with children or the public
  • Retail store employees who have in-person interaction with the general public
  • Hotel, motel, or transient accommodation employees
  • Restaurant employees
  • Home care aides
  • Correctional officers
  • Educational employees (K-12 and higher education) who have in-person interaction
  • Public library employees
  • Nursing homes employees

As you can see, this covers a wide swath of employees in all manner of service industries in our state.

So what is “rebuttable presumption”?

I’m glad you asked. Under HELSA, if there is a public health emergency, the law will presume that an infectious or contagious disease that is transmitted through respiratory droplets, aerosols, or contact with contaminated surfaces is an occupational illness for frontline workers. In short, if a frontline worker contracts such an infectious disease, the presumption will be that the individual contracted it at work. To rebut the presumption, the employer (that’s you) has the burden of establishing that exposure occurred during non-employment activities, a leave from work, or during a period of quarantine.

And you mentioned something about reporting and notice requirements?

Sure did. The law creates a requirement to report an outbreak to the Department of Labor and Industries (L&I), as well as provide notice to employees of potential exposure.

  • Report to the State. In the event of an “outbreak,” the employer must report positive tests to L&I within 24 hours of the outbreak. (The form for such a report is pending.) An “outbreak” occurs when an employer with 50 or more employees at a workplace or a worksite has 10 or more employees at the worksite test positive for the infectious or contagious disease. Notably, there is no timeframe in which the 10 positive cases must occur (although this could be clarified later in regulations).
  • Notice to Employees. In the event of a “potential exposure,” employers must do the following within 24 hours of the exposure event. A “potential exposure” occurs when an individual at the worksite has a positive confirmed case of an infectious disease.
  • Provide written notice to all employees and employers of subcontracted employees who were at the worksite within the infectious period who may have been exposed to the infectious or contagious disease.
  • Provide written notice to employee representatives. Written notice may include, but is not limited to, personal service, e-mail, 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 English and the language understood by the majority of the employees. Notably, however, health care facilities such as hospitals and clinics are exempted from the “all employee” reporting obligation.

Anything else?

Of course! The law also provides protections for high-risk employees during a public health emergency. HELSA prohibits discrimination against high-risk employees who seek accommodation to protect them from the risk of exposure to the infectious disease. If no accommodation exits, the employer is required to provide the employee with all available leave options. These protections have existed during COVID-19 under Executive Order 20-46. HELSA has now made them official law.

So what should I do now?

Keep calm and carry on. Hopefully we’re at the tail end of the COVID-19 public emergency. HELSA applies to more than just COVID-19; it addresses “infectious diseases” going forward when a public health emergency is declared. Fingers crossed we won’t see another one in the immediate future. But just in case, have contact information for your employment attorney handy so we can help you navigate compliance with the reporting requirements and assist with rebutting the presumption if necessary.

Information contained in this alert is for general information purposes only. It should not be considered as legal advice or the sole source of information when analyzing and resolving a legal issue. If you have specific questions regarding your particular circumstances, please do not hesitate to contact your CH& counsel.