Employer Alerts & Employment Law Updates

L&I has released a new Washington State poster: Job Safety & Health Law. You can find the updated poster here: https://www.lni.wa.gov/forms-publications/F416-081-909.pdf

Beginning January 1, 2024, Washington employers are generally prohibited from discriminating against applicants based on the candidate’s cannabis use while off-duty and away from the workplace. Employers are also restricted from receiving and considering pre-employment drug screens for cannabis*, except in certain fields including law enforcement, fire departments, first responders, those working in jail and detention facilities, those working in airline or aerospace industries, and “safety sensitive position[s] for which impairment while working presents a substantial risk of death.”  RCW 49.44.240.  

The Summary of Rights Under the FCRA is a required disclosure employers must give candidates during the background screening process prior to procuring an Investigative Consumer Report (ICR). An Investigative Consumer Report is one that includes subjective opinions about the candidate, such as reference checks. It is a best practice to provide this Summary of Rights with the standard consumer report disclosures when requesting any type of background check, even when it does not meet the ICR definition. The Summary of Rights disclosure must also be sent to the candidate or employee along with the Pre-Adverse Action letter, when applicable.

The EEOC has released a new “Know Your Rights” poster, which can be accessed here.

A United States District Court in Texas issued a preliminary injunction on Friday, blocking President Biden’s Executive Order mandating that all federal workers be vaccinated against COVID 19 or face termination from employment. The court emphasized that while it believed individuals should, in fact, get vaccinated, the mandate without Congressional input was an overreach of executive power. Enforcement of the mandate is now on hold nationwide, until the case is resolved on its merits. The Biden administration stated it will appeal the court’s order.

The Supreme Court, in a 6-3 decision on Thursday, blocked enforcement of the federal OSHA Emergency Temporary Standard (ETS) for large employers, which would have required workers to be vaccinated against COVID or wear masks and be tested weekly. The second mandate at issue, which applies to workers at hospitals and other health care facilities that participate in Medicare and Medicaid, was allowed to proceed.

Minimum Wage

Beginning January 1^st Washington’s state minimum wage has increased from $13.69 to $14.49 per hour. 

After several stops and starts, the OSHA ETS, mandating that employers with 100 or more employees implement a “vax or test” requirement for their workplaces, is back on – for now. On December 17, 2021, the 6^th Circuit Court of Appeals lifted a stay of the mandate, allowing the ETS to proceed. Immediately thereafter, the matter was appealed to the US Supreme Court and oral arguments are scheduled for January 7, 2022. In the meantime, however, the mandate remains in effect. To address the uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates and will not issue citations for non-compliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. You can find the OSHA “Litigation Update” and statement here: https://www.osha.gov/coronavirus/ets2

Governor Jay Inslee issued a press release on December 23^rd to address the confusion generated by last week’s announcement that premium collection under the WA Cares Fund Act was being postponed. Since the original announcement, employers have been wondering whether they should begin collecting premiums starting January 1, 2022.

It has been a legal whirlwind since OSHA issued its large employer emergency temporary standard (ETS), published in the Federal Register on November 5, 2021. As a refresher, the ETS required employees of large employers (those with 100 or more workers) to be either fully vaccinated by January 4, 2022, or submit to weekly testing and wear a mask. The ETS also contained provisions for verifying vaccine status, paid time off to get vaccinated, and recovery time for any post-vaccination side effects. Details of the OSHA ETS will be discussed in the next Webinar Wednesday.

Revisions to the Washington State Minimum Wage Act (MWA) have resulted in increases to the minimum salary level that must be earned by employees to be properly classified as exempt. The salary threshold for classifying Washington employees as exempt will increase again effective January 1, 2022. Salary threshold levels for employees (other than computer professionals) of small and large employers can be found on the New Salary Threshold Implementation Schedule published on the Washington State Department of Labor & Industries website. The salary threshold is revised each September for the following year based upon increases to the minimum wage which relies upon the Consumer Price Index. Employers should be on notice that salary projections for future years are based upon the estimated Consumer Price Index which may be updated. Accordingly, future salary threshold numbers should be verified by employers periodically.

Private large employers will soon be required to comply with the recently issued OSHA Emergency Temporary Standard (ETS), requiring businesses with 100 or more employees to ensure their employees are vaccinated by January 4, 2022. Employees who cannot be vaccinated due to a medical or religious exemption must submit to weekly testing and wear face coverings while indoors at the workplace.

Washington Proclamation 21-14 related to COVID-19 vaccination requirement for certain health care providers, state workers, and workers was been amended (Proclamation 21-14.1) late Friday to include those working in educational settings as well as provide additional detail regarding exemptions and contractors.