Reporting and Notification Requirements of HELSA and PPE Usage - Questions & Answers

Questions and Answers: Reporting and Notification Requirements of HELSA and PPE Usage

Last Updated April 29, 2022

Background

Washington State has updated two workplace safety and health rules, Public Health Emergency Reporting and Notification Requirements for Infectious and Contagious Diseases, WAC 296-62-600, and Public Health Emergency Voluntary Personal Protective Equipment Usage, WAC 296-62-601. Originally adopted on August 10, 2021, and updated in April of 2022, these rules take effect during declared public health emergencies that involve infectious or contagious disease, including the current COVID-19 pandemic. They implement the following legislative requirements signed into law by Gov. Jay Inslee:

  • Employer reporting and notification requirements originating from the Health Emergency Labor Standards Act or “HELSA”, now located at RCW 49.17.062 and RCW 49.17.064
  • Requirements for employers to accommodate voluntary use of facemasks and other personal protective equipment (PPE) during a public health emergency; based on RCW 49.17.485

The April 2022 updated emergency rule includes requirements for all employers and health care facilities (as defined by RCW 9A.50.010):

  • Employers with more than 50 covered employees at a workplace or worksite are required to report infectious or contagious disease outbreaks to L&I;
  • Non-healthcare employers are required to notify employees, as well as their union representative (if any), in writing of potential exposures within one business day;
  • Employees and contractors must be permitted to voluntarily use personal protective equipment.
  • Employers of health care facilities must notify any employee with known or suspected high-risk exposure to the infectious or contagious disease within 24 hours
    • With employee authorization, notification must also be sent to the employee’s union representative (if any) within 24 hours.

The following questions and answers may help you understand and comply with the new rules, WAC 296-62-600 and WAC 296-62-601.

Reporting Outbreaks to L&I during Public Health Emergencies

Are employers required to report outbreaks to L&I during the current COVID-19 pandemic?

Yes. Employers with 50 or more covered employees must report COVID 19 outbreaks for workplaces or worksites in Washington State. This includes workplaces or worksites that are at health care facilities as defined by RCW 9A.50.010. The requirements will remain in effect until the declared public health emergency ends.

These reporting requirements will apply to future pandemics or other public health emergencies involving an infectious or contagious disease as declared or ordered by the President of the United States or by the Washington state governor.

What is an outbreak?

In general, an outbreak is a cluster of infections occurring at a specific workplace or worksite in a particular timeframe.

This regulation applies specifically to COVID-19 outbreaks of ten or more test-confirmed employee COVID-19 infections with test collection dates that occur during:

  • A period of time that starts when any two (or more) cases have occurred within 14 consecutive calendar days of each other and ends when 28 consecutive calendar days have passed without a new infection, OR
  • Any period of time the Washington State Department of Health or a local health jurisdiction communicates to the employer that there is a COVID-19 outbreak at their workplace or worksite.

Who is a covered employee?

Covered employees are hourly, salaried, labor, management, part-time, and seasonal employees; and any employee hired from a temporary help service, employee leasing service, or personnel supply service if they supervise the employee on a day-to-day basis (per WAC-296-27-02103).

How do employers report outbreaks and how much time do they have to report?

Once the employer learns that ten or more cases have occurred in a workplace or work site, the employer has 24 hours to report the outbreak by calling L&I’s Division of Occupational Safety and Health (DOSH) at 1-800-4BE-SAFE (or 1-800-423-7233) and following the option for “reporting fatalities, hospitalizations, amputations or loss of an eye.”

When reporting to DOSH, do not include any employee name(s) or personal identifying information.

Do employers need to report more than once during an outbreak?

Once the employer has reported an outbreak no further reporting is required for that outbreak, even if additional cases occur.

It is possible that some workplaces could experience a new outbreak after passing 28 days without a new case; if that happens, the employer would need to report the new outbreak.

Employee Notification of Exposure (All Employers)

Are employers required to notify employees of exposure to COVID-19 during the current pandemic

Yes. The employee notification requirements are in effect now for COVID-19 cases and will remain in effect until the declared public health emergency ends. Employee notification requirements exist for all employers covered by WAC 296-62-600.

These requirements will go into effect during any future pandemics or other public health emergencies involving an infectious or contagious disease as declared or ordered by the President of the United States or by the Washington state governor.

Who is a qualifying individual?

A qualifying individual is someone who has tested positive for COVID-19, been diagnosed by a health care provider with COVID-19, been ordered to go into isolation, or has died due to an infectious or contagious disease that is subject to a public health emergency.

Are health care facilities covered by the notification requirements?

Yes, the April 2022 release of WAC 296-62-600 includes notification requirements for health care facilities as defined by RCW 9A.50.010.

Are the notifications for non-healthcare employers the same as those for healthcare facilities?

No. The notification by the employer to the employee(s) depends the definition of health care facility as defined by RCW 9A.50.010. Health care facilities and non-health care employer have different requirements including triggers for notification. For example:

  • If a Non-health-care facility employer receives a notice of potential exposure of an employee, then the employer must notify all employees on the premise during the infectious period. They must provide a notice of potential exposure to those individuals within one (1) business day.
  • Health care facility employers must notify employees, when an employee has a known or suspected high risk exposure to the infectious or contagious disease. The employer has 24 hours to notify employees of the high-risk exposure to the infectious or contagious disease.

What if I have 50 or fewer employees?

As noted above, employers with 50 or fewer covered employees at a particular worksite do not have to report outbreaks to L&I. However, they are still required to notify employees.

Notifying Employees of Potential Exposure (Non-Healthcare Employers)

What triggers the notification requirement for non-healthcare employers?

The notification requirement is triggered each time an employer receives a notice of potential exposure:

  • Through the employer’s testing protocol that an employee is a qualifying individual, OR
  • From an employee (or their emergency contact) that the employee is a qualifying individual, OR
  • From a medical provider or public health official that an employee was exposed to a qualifying individual at the worksite.

Whom must non-healthcare employers notify?

The employer must notify all covered employees who were on the premises at the same worksite on the same day(s) as a qualifying individual who may have been infectious or contagious. For COVID-19, a qualifying individual could be infectious or contagious:

  • If symptomatic, at least two days before feeling sick; OR
  • If asymptomatic, at least 2 days before test specimen collection, AND
  • Until they are isolated or leave the worksite.

Do non-healthcare employers need to provide written notice to anyone else?

Yes, employers must also provide written notice to the:

  • Employee-authorized union representative(s) of any covered employee-receiving notification.
  • Temporary help service, employee-leasing service, or personnel supply service employer of any employee receiving notification.

How are non-healthcare employers supposed to provide notification?

The employer must provide written notice in a manner normally used to communicate employment-related information. This includes but is not limited to personal service, email, or text message — if the notification can reasonably be anticipated to be received within one business day by the employee.

Written notification must be in English and the language understood by the majority of the employees. This also applies to written notices provided to union representatives and employers.

Can notices provided by employers in non-health care facilities include employee names?

No. Under the rule, written notices to covered employees must not include any employee name(s) or personal information.

Notices may include information such as the program or area where the covered employee works as long as the information will not lead to the identity of the covered employee.

How much time does a non-healthcare employer have to notify employees, unions, and other employers?

One business day to provide written notice of potential exposure(s) to employees, union representation, and other employers.

Notifying Employees of High Risk Exposure (Health Care Facilities)

What is a Health Care Facility?

Health care facilities are those that provide healthcare services directly to patients, including but not limited to, a hospital, clinic, healthcare provider’s office, health maintenance organization, diagnostic or treatment center, neuropsychiatric or mental health facility, hospice, or a nursing home from RCW 9A.50.010: Definitions. 

How and when must health care facilities notify covered employees?

Health care facilities must notify any employee with known or suspected high-risk exposure to COVID-19 within 24 hours. With employee authorization, employer must also notify the union representative of the employee's known or suspected high-risk exposure to COVID-19 within 24 hours.

What is a high-risk exposure in healthcare?

A high-risk exposure means being in any of the following situations without a fit-tested respirator and all other required personal protective equipment:

  • Within six feet of a qualifying individual for a cumulative total of 15 minutes or more over a 24-hour period during the qualifying individual's potential period of transmission.
  • In the same room as a qualifying individual who is undergoing an aerosol-generating procedure. You will find a list of aerosol-generating procedures on the Dept. of Health (DOH) website.
  • In the room where a qualifying individual underwent an aerosol-generating procedure, prior to the termination of the clearing time.

What is the period of transmission for health care facilities?

For COVID-19 a qualifying individual is potentially infectious or contagious two days before the qualifying individual felt sick/had symptoms (or, for asymptomatic people, two days before the test specimen collection) until the time the qualifying individual left and/or was isolated from the worksite, or until the Center for Disease Control's (CDC's) return-to-work criteria under conventional staffing protocol has passed, whichever is longer. For additional information see the CDC's web page on mitigating health care staff shortages.

What is a room clearance time?

Clearing time means the amount of time it takes for an aerosol to be removed from a room based on CDC guidelines for 99.9 percent removal efficiency. This is no more than three hours following the conclusion of the procedure. One hour is sufficient in clinical spaces constructed under DOH clinical facility requirements (six air exchanges per hour) and 15 minutes is sufficient in an airborne infection isolation room (AIIR).

Can notices provided by health care facility employers include employee names?

The COVID-19 status of individual employees must be kept confidential according to the Americans with Disabilities Act (ADA). For more information, refer to this information from the United States Equal Employment Opportunity Commission.

COVID 19 Disclosure

Does WAC 296-62-600 prohibit the disclosure of any employee medical condition or diagnosis to their employer?

Consistent with RCW 49.17.062, the rule does not prohibit the disclosure of any employee medical diagnosis or condition. This applies to both health care facilities and non-healthcare employers.

Does WAC 296-62-600 create any new requirements for the disclosure of any employee medical condition or diagnosis to their employer?

Consistent with RCW 49.17.062, the rule does not create any new requirements for the disclosure of any employee medical diagnosis or condition. This applies to both health care and non-health-care employers.

Can employers ask employees, if they have been diagnosed with or tested for COVID-19?

DOSH continues to expect employers to control the spread of COVID-19 at work, such as by having employees who are contagious with COVID-19 stay home. The rule does not prohibit lawful employer to employee inquiries related to COVID-19. For more information about this and other equal opportunity law questions, employers and employees should consult the United State Equal Employment Opportunity Commission technical assistance document.

Complaints

How do I complain if I believe employees are not receiving the notifications at the time and in the manner required by WAC 296-62-600?

You can call DOSH at 1-800-4BE-SAFE (or 1-800-423-7233). Or you can fill out a DOSH complaint form, available at https://www.Lni.wa.govSafetyComplaints

Voluntary Use of Personal Protective Equipment (PPE)

What is voluntary PPE use?

Voluntary use refers to the optional use of a facemask or other PPE by an employee or contractor in the workplace when it is not required by the Washington Industrial Safety and Health Act (WISHA, Chapter 49.17 RCW) or the employer during a public health emergency involving an infectious or contagious disease.

Voluntary use can also occur when an employee or contractor required to use PPE wants to upgrade their level of protection; for example, a more protective mask (respirator) voluntarily such as an N95.

What should an employer do if someone wants to use PPE voluntarily?

Employers must allow any employee or contractor (fully vaccinated or not) to voluntarily use PPE, but only after the employer has determined use will not:

  • Create a safety or health hazard, OR
  • Interfere with the employer’s security requirements, OR
  • Conflict with PPE requirements specified by other applicable health and safety rules.

Do employers need to pay for PPE voluntarily used?

No, employers must only pay for required PPE.

How do I complain if I believe employees are not being permitted to voluntarily use PPE according to WAC 296-62-601?

You can call DOSH at 1-800-4BE-SAFE (or 1-800-423-7233). Or you can fill out a DOSH complaint form, available at https://www.Lni.wa.govSafetyComplaints

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