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Must Employees in Washington State Wear Masks?

With the Covid-19 vaccine being widely administered in Washington state, many ask, “must employees continue to wear masks at work?”  The short answer is, it depends.

For many (but not all) employers, as of May 21, 2021, an employer may lift an employee mask requirement, but only if the employer obtains from each employee one of two documents. The employee must provide either: (1) proof of the employee’s vaccination, or (2) written confirmation signed by the employee that they have been vaccinated.  If the employee provides the documentation, the employer may choose to relax employee social distancing to less than 6 feet, or may choose to no longer require masks of the vaccinated employees.  See Proclamation 20-25.13 issued by Governor Jay Inslee. However, it is important to note this Proclamation does not override CDC guidance, does not override stricter rules of  local governments, and does not require businesses to abolish mask or distancing requirements.  https://www.governor.wa.gov/sites/default/files/proclamations/proc_20-25.13.pdf

To learn more about what rules may apply to your industry, seehttps://www.governor.wa.gov/issues/issues/covid-19-resources/covid-19-reopening-guidance

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Hiring in Seattle? Rules for Criminal Background Checks

In 2013, the City of Seattle enacted the “Fair Chance Employment” ordinance governing how criminal background checks are to be used in the hiring process. The rule went into effect on November 1, 2013.  SeeSeattle Municipal Code 14.17.

The rule limits the extent to which an arrest or conviction may be used to potentially disqualify job applicants.   The goal is to reduce recidivism and to provide more opportunity for those who have paid their debt to society to be gainfully employed.

So what size employers are affected? Any business with one or more employees, except certain types of jobs.

Which employees are subject to the ordinance?  Employees who provide services 50% or more of the time within the city limits.  This means it may apply to employers who are based outside of Seattle, but whose employees work at least 50% of the time in Seattle.  It applies to applicants for full time, part time and temporary employment. It applies to those positions that will require the employee to substantially work in Seattle, even if the employer is not based in Seattle.   So, for example, if your company is based in Edmonds, and you routinely send employees to jobsites in Seattle so that at least 50% of their time is spent on Seattle projects, expect that the ordinance will apply to applicants for those positions.

Does the ordinance apply to all employees in Seattle? No. It does not apply to individuals in law enforcement, policing, crime prevention, security, criminal justice or private investigation services.  It also does not apply to employees who will or may have unsupervised access to children under 16 years of age, developmentally disabled persons, or vulnerable adults.

So what are the rules? A few of the key requirements are: (1)  the ordinance prohibits automatic disqualification from employment simply because the applicant has either an arrest or conviction record; (2) questions about criminal history and conducting background checks must wait until afteran employer conducts an initial screening of applicants; (3) if a background check is done, the employer must give the applicant a chance to explain or correct the criminal history information, and;(4) the employer must have a “legitimate business reason” to deny the applicant a job based on a conviction record.

What’s a “legitimate business reason”?  It’s a bit subjective, but the ordinance provides some guidance: (1) the conviction (or pending charge) would have a “negative impact” on the employer or on the applicant’s ability to do the job, and (2) in arriving at this conclusion, the employer has considered several factors, including:

  1. the seriousness of the conviction or charge;
  2. the number and types of convictions or pending charges;
  3. how long it’s been since the conviction or charge (not including periods of incarceration);
  4. verifiable information related to the rehabilitation or good conduct of the individual;
  5. the specific duties and responsibilities of the position sought or held, and;
  6. the place and manner in which the position will be performed.

SeeS.M.C. 14.17.010

Bottom line – if an applicant is rejected because of a criminal history, the employer will have to demonstrate that it considered all these factors. If the employer cannot show that these factors were actually considered, the chances of OLS sustaining a violation (and imposing penalties) is much higher.  Though vague, the ordinance provides a bit of a roadmap for how to avoid a violation, and smart employers will follow it.

To help, the City’s Office of Labor Standards has a poster with the information that employers are required to provide about the ordinance, and employee’s rights under it.  Use the poster. It’s free – and mandatory. Willful failure to post it can be a $500 penalty. Fortunately, it’s easy to comply. Pick up the workplace poster from the OLS office in downtown Seattle, or simply go its website and download it:  https://www.seattle.gov/laborstandards/outreach/publications

OLS is the agency that investigates complaints of the ordinance being violated, and if it is found that an employer did violate it, the Director of OLS can impose penalties on the employer such as payment of unpaid wages, fines, and interest due (among other costs).  The minimum penalty for a first violation is $500 – in addition to other damages an employee or applicant may have.  A second violation is at least $1,000.  Penalties don’t get cheaper over time.

This is just a summary with some highlights of the ordinance, and is not legal advice. If you have questions about the ordinance, consult a lawyer.

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Affordable Care Act Basics (“Obamacare”) for Washington State Residents

1.What IS it? The AFA is a federal law designed to help people get medical insurance coverage.  For employers who have 50 or more Full Time or Full Time Equivalent (FTE) employees, it is mandatory to provide affordable health insurance or else pay a tax penalty. For everyone else, it provides a route to obtaining insurance through “insurance exchanges”, which function as an open marketplace for you to shop for insurance.  If you can afford coverage but nonetheless choose not to obtain it, you will owe a tax penalty.   The tax penalties start small, but increase over time if you continue not to get insurance.  Of course, if you don’t get insurance, you will also have to pay out of pocket for your medical expenses, so it’s smart to get coverage.  See http://www.healthcare.gov

2.What do I do if I’m Self-Employed? Use the insurance exchange. WA is ahead of many states in getting set up. See http://www.wahbexchange.org/ and http://www.wahealthplanfinder.org/

3.What IS a health insurance exchange? It’s a way for health insurance companies and persons seeking coverage to connect (the federal government calls the exchanges “the Marketplace”). To get in, you have to sign up during open enrollment (currently October 1, 2013 to March 31, 2014). The insurance companies make their coverage options available to individual members of the insurance exchange. In WA, the process is arranged via the state government. The insurance companies get to sell coverage plans to a much larger customer base and thereby lower the underwriting risks, and individuals get to sign up for coverage if their employer (or spouse’s employer) does not already make it available.  There are a variety of coverage options, and like any marketplace, the coverage options may change with the amount of money the customer is willing to pay.

4.What do I do if I own small business that has less than 25 employees? Must I provide health insurance? No. But if you want to, great! If you want to provide insurance but think your company can’t afford it, the company may be eligible for tax breaks on the employer portion of the insurance premiums to help out.  Employers with 25 or fewer employees are generally also eligible to obtain policies for their employees via the “Small Business Health Options Program” (SHOP). In WA SHOP is available through http://www.wahealthplanfinder.org/

5.What is “affordable” health insurance? If your company provides insurance, it is “affordable” if the employee’s premium is no more than 9.5% of the employee’s household income. Because you may not know your employee’s household income, a good practice is to have the employee’s share be no more than 9.5% of what you pay the employee as reported on the W-2 issued by your company.

6.I’ve got a pre-existing condition; can I still get coverage? Yes!

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If You Sell Things, You Need To Know About the Uniform Commercial Code

What is the Uniform Commercial Code (UCC)? It’s a statute which governs sales of goods (and a few other things).  Every state has a version, and Washington’s is RCW 62A.

So what kind of stuff does the UCC apply to? It applies to sale of goods, to real estate transactions, commercial paper (e.g., promissory notes), secured transactions (e.g, collateral); warehouse receipts and documents of title.  If you are in a business that uses these items, the UCC applies.  It is what drives the language of contracts for these things whether you realize it or not.

For example, the UCC requires a sale of $500 or more to be in writing:  “a contract for the sale of goods for the price of five hundred dollars or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker.”  RCW62A.2-201(1).   In short, you cannot walk into court and ask a judge to enforce an oral agreement to sell or buy any item worth more than $500.  Gotta be written.

Does the UCC apply to an agreement to provide services?  Basically, no. You can orally agree to provide, say, construction services to a customer.  If the customer then breaches the oral contract, you can try to sue.  Suing can be difficult for other reasons, but the UCC won’t stop you.

Why does the UCC matter? As you can see, the UCC protects buyers and sellers alike. To buyers, it provides assurances (warranties) to buyers about the quality of the goods – and a right to sue if the goods don’t meet the right standards.  To sellers, it provides a right to sue if the buyer breaches the contract, and provides a lien process to protect interest in collateral.

Examples of UCC warranties include (1) Warranty of title – that the seller has the right to sell the item.  RCW 62A.2-312;  (2) Implied warranty of merchantability (made to the standards applicable in the industry)  RCW 62A.2-314, and (3) Implied warranty of fitness for particular purpose. RCW 62A.2-315.  These warranties protect consumers, which after all, includes nearly every business. Businesses buy goods for their own use all the time.

But the UCC also protects sellers. For example, if you own a business and buy equipment with financing, the lender can file a lien statement to protect its stake in the collateral. The lien can come up when you seek loans for other items.  Likewise, if you are selling an item and providing financing for the buyer to purchase it, you may be entitled to file a lien to protect your stake in the item.

These are just a few simple examples of what the UCC addresses, so check with your lawyer to make sure you understand your rights and obligations.

© Copyright 2011 Law Office of Susan K. Fuller, PLLC