Workplace Compliance News & Resources
for the Pacific States
Below is a round-up of workplace safety news for states in the Pacific Coast region employers need to know to keep their business compliant.
Stay on top of safety and compliance the right way with this information but be sure to seek legal counsel when you’re looking for how these changes will directly impact your business. Wherever available, KPA products are updated with the latest government notices and posters for employers.
Hawaii
Who: Hawaii private employers with 50 or more employees
When: Effective January 1, 2024
Governor Josh Green signed SB 1057 into law to reduce pay inequalities by increasing pay transparency and prohibiting pay discrimination for certain employees. The law applies to private employers that have 50 or more employees.
Starting January 1, 2024, employers must include in their job postings the hourly rate or salary range that reasonably reflects what they expect to pay. Employers do not have to include benefit information in job postings.
The law does not apply to these job listings:
- Positions at employers with less than 50 employees;
- Internal transfers or promotions with a current employer; and
- Public employee positions covered under a collective bargaining agreement.
The new law amends the state’s equal pay law in two ways. First, it prohibits pay discrimination against workers based on any protected category under Hawaii law. Second, it requires employers to compare employees who perform “substantially similar work” rather than “equal work.”
How:
- Review and update your pay transparency policies and practices to comply with the law.
- Update your job postings to include the required information.
- Train all personnel and third parties involved in the hiring process on the provisions of the law.
- Consider conducting pay audits to uncover disallowed pay discrimination practices.
Additional Resources:
Who: Hawaii employers
When: Effective October 1, 2022
Hawaii Governor David Ige signed HB 2510 into law on June 22, 2022. Minimum wage will increase in increments over the next six years to $18.00 per hour by 2028. On October 1, 2022, the minimum wage increases to $12.00 per hour and the tip credit increases to $1.00 per hour. Subsequent increases are as follows:
- On January 1, 2024, minimum wage will increase to $14.00 per hour and the tip credit will increase to $1.25 per hour.
- On January 1, 2026 minimum wage will increase to $16.00 per hour.
- On January 1, 2028, minimum wage will increase to $18.00 per hour and the tip credit will increase to $1.50 per hour.
How:
- Post the required wage and hour laws poster.
Additional Resources:
Hawaii Wage and Hour Laws Notice to Employees
State of Hawaii Department of Labor and Industrial Relations Labor Law Poster
State of Hawaii Tip Credit Notice and Easy Reference Guide
State of Hawaii Wage Standards Division Minimum Wage and Overtime
Oregon
Who: Oregon employers
When: Effective July 1, 2024
On March 20, 2024, Oregon Governor Tina Kotek signed SB 1515, which amends existing leave laws. The Oregon Family Leave Act (OFLA) and Paid Leave Oregon (PLO) interact with employer-provided paid time off benefits and Oregon’s predictive scheduling law. Both OFLA and PLO offer job-protected leave. OFLA applies to employers with 25 or more employees. PLO applies to employers with one or more employees.
OFLA no longer runs concurrently with Paid Leave Oregon. Employees may draw on either OFLA or Paid Leave Oregon, but not both, for qualifying events.
The amendment makes other major changes to OFLA to eliminate major redundancies between the two laws. The list of covered events under OFLA is much shorter:
- Home care for the employee’s child for health conditions (serious or not) and school and childcare closures related to public health emergencies (capped at 12 weeks)
- Bereavement (capped at 12 weeks; limited to two weeks per family member at a time and four weeks total in a leave year)
- Pregnancy disability (up to 12 additional weeks; no employer notice required)
- From July 1, 2024, through December 31, 2024, up to two additional weeks of leave to facilitate the legal processes required for adoption or the placement of a foster child (will be covered by PLO after that)
- Military family leave (up to 14 days of deployment) still counts against available OFLA leave
OFLA no longer contains special provisions regarding teachers taking leave near the end of term. It also no longer provides additional sick child leave for employees who take 12 weeks of parental leave.
Employees can take PLO for:
- A serious health condition of self or family
- Parental bonding
- Pregnancy disability (employee can stack PLO and OFLA for a total of 24 weeks)
- Leave pertaining to being a survivor of sexual assault, domestic violence, harassment, bias crimes, or stalking—for oneself or if the victim was the employee’s child
Employees are allowed to use employer-provided vacation or sick leave concurrently with PLO, but the employer may cap it at the amount that provides 100% wage replacement. In addition, PLO leave is no longer capped. Employees can take the full amount of OFLA and PLO entitlements in a benefit year.
If an employee provides less than 14 days’ notice of their need for, or return from, leave under PLO or OFLA, large retail, hospitality, and food service employers now have relief from predictive scheduling penalties.
Employers can rescind approval of leave that will be taken after July 1, 2024, though they must have given notice to employees by June 1, 2024.
On May 8, 2024, the Oregon Bureau of Labor and Industries published proposed rules that are effective until July 1, 2024.
How:
- Post an Oregon Family Leave Act notice and the Oregon Paid Leave Model Notice.
- Review your leave policies and update them to comply with the law. Decide if you want to establish the order in which employees must take different types of accrued leave.
- Update your employee handbooks.
- Update your leave tracking systems.
- Train HR personnel and those who manage leave on the provisions of the law.
- Consult with legal counsel to ensure compliance.
- Monitor for final rules to be published.
Additional Resources:
Who: Covered Oregon organizations
When: Effective July 1, 2024
On July 18, 2023, Oregon Governor Tina Kotek signed the Oregon Consumer Privacy Act (OCPA), which goes into effect on July 1, 2024. Nonprofit organizations will have until July 1, 2025, to comply. The Act applies to any person conducting business in Oregon or providing products or services to Oregon residents if they:
- Control or process the personal data of more than 100,000 consumers or
- Control or process the personal data of 25,000 or more consumers and derive 25% or more of their gross revenue from selling personal data.
Personal data is defined as “derived data or any unique identifier that is linked to or is reasonably linkable to a consumer or to a device that identifies, is linked to, or is reasonably linkable to one or more consumers in a household.”
The OCPA has additional requirements for “sensitive data,” which includes children’s data; genetic or biometric data; precise geolocation data; or data that reveals a consumer’s national origin, citizen or immigration status, racial or ethnic background, religious beliefs, mental or physical condition/diagnosis, sexual orientation, transgender or non-binary status, or status as a victim of crime. A consumer’s consent is required prior to processing sensitive data.
Biometric data is defined as “personal data generated by automatic measurements of a consumer’s biological characteristics, such as the consumer’s fingerprint, voiceprint, retinal pattern, iris pattern, gait, or other unique biological characteristics that allow or confirm the unique identification of the consumer.” The definition excludes photographs, audio and video recordings, and facial mapping, unless they are using it to identify a specific consumer.
Oregon consumers have the right to control their personal data, including the right to know whether and how their data is being used, to correct or delete their data, and to obtain a copy of their personal data. Consumers may opt out of having their data sold or shared for targeted advertising. The law grants the right to know the specific third parties to whom a data controller discloses their personal data.
Data controllers must obtain consent from a parent or guardian to obtain personal data from individuals 13 to 15 years old and must retain all data protection impact assessments for a period of five years. When processing data of children under the age of 13, data controllers must follow the requirements of the federal Children’s Online Privacy Protection Act.
Data controllers must inform consumers of their privacy policies and practices and include specific information as defined in the regulation. They must ensure proper safeguards are in place to protect the data, and they must enter into specific contracts with processors handling data on their behalf.
There are exclusions for some types of data, including data processed only for the purpose of completing a payment transaction, employment data, and certain data protected by other regulations. Some types of entities, such as public corporations, businesses processing protected health information under HIPAA, and those subject to the Gramm-Leach-Bliley Act, are exempted from the law’s provisions.
The Oregon Attorney General may bring action to seek a civil penalty of no more than $7,500 per violation and other forms of relief, such as injunctive relief and restitution. There is no private right of action.
How:
- Review your data collection and processing business practices and update them to comply with the law.
- Update your reporting practices to comply with the law.
- Create and distribute a privacy policy notice with the appropriate information.
Additional Resources:
Who: Oregon employers
When: Effective September 3, 2023
Employees in Oregon may start applying for Oregon Paid Family Medical Leave (OR PFML) insurance benefits on September 3, 2023. Eligible employees may apply for up to 12 weeks of paid leave for family, medical, or safe-leave benefits. If the leave is related to pregnancy or childbirth, covered individuals are eligible for an additional two weeks of leave, for a total of 14 weeks.
Reasons for leave include:
- To care for and bond with a child within the first 12 months of birth or placement;
- To care for a family member with a serious illness or injury;
- To care for an employee’s own serious illness or injury;
- To take safe leave to address an incidence of domestic violence, harassment, sexual assault, or stalking.
Employees must give 30 days’ notice before a qualifying event in order to take paid leave, and at least 24 hours’ notice for an emergency. The notice doesn’t have to be in writing, but the employee must give the employer written notice after three days of starting the leave. Otherwise, the employee’s weekly benefit can be reduced by 25%. Employees must use the Frances Online portal to apply for benefits.
How:
- Post the Oregon Paid Leave Notice Model in the workplace and provide it to remote employees electronically or by mail.
- Provide a copy of your OR PFML policies to new employees upon hire.
Additional Resources:
Oregon Paid Leave Model Notice Poster English
It’s time for Paid Leave Oregon
Time for care when it matters most (Employees)
Who: Oregon employers
When: Effective July 1, 2023
Effective July 1, 2023, the Oregon minimum wage will increase as indexed to inflation. The Portland metro area minimum wage will increase to $15.45 per hour. The standard minimum wage will increase to $14.20 per hour, and the non-urban minimum wage will increase to $13.20 per hour.
Employers can use the Oregon Urban Growth Boundary Tool to identify which rates apply to their locations.
The Oregon Minimum Wage Poster is not yet available. Once released, employers must post it at the worksite and provide it to remote workers.
How:
- Monitor the release of the Oregon Minimum Wage Poster.
- Ensure you are applying the correct minimum wage rate based on location.
Additional Resources:
Oregon Minimum Wage Increase Schedule
Who: Oregon employers
When: Payroll reports due May 1, 2023
Employers must file a combined quarterly report of wages earned and contributions paid to the Oregon Department of Revenue for the Oregon Paid Leave (OPL) plan. For employers with 25 or more employees (determined by a count of all employees, not just those in Oregon), the total premium contribution is 1% of wages, with employers contributing 0.6% of wages and employees contributing 0.4% of their own wages. Employers with fewer than 25 employees are not liable for the employer portion but must collect and remit 0.4% of employees’ wages. An employer may choose to cover the employees’ portion.
Oregon employers must submit their quarterly payroll reports and make a Paid Leave Oregon contribution by May 1, 2023, to Frances Online, Oregon’s payroll reporting system. Late filers are subject to a late penalty. Employers who intend to administer their own private equivalent plan and submitted an application and were approved as exempt are not required to participate in the Paid Leave OPL) plan.
How:
- Update your policies and procedures to comply with the law.
Additional Resources:
Who: Oregon employers
When: Effective January 1, 2023
Employers must start collecting and remitting contributions to the Oregon Paid Leave (OPL) plan (formerly Oregon Paid Family and Medical Leave Insurance) by January 1, 2023. For employers with 25 or more employees (determined by a count of all employees, not just those in Oregon), the total premium contribution is 1% of wages, with employers contributing of 0.6% of wages and employees contributing 0.4% of their own wages. Employers with fewer than 25 employees are not liable for the employer portion but must collect and remit 0.4% of employees’ wages. An employer may choose to cover the employees’ portion.
Employers who intend to administer their own private equivalent plan must have submitted an application to be exempted from the program by November 30, 2022.
Employers will be required to file a combined quarterly report of wages earned and contributions paid to the Oregon Department of Revenue, and they must submit the premium contributions due at that time.
An employee is eligible for benefits if they have earned at least $1,000 in wages during the base year (the first four of the past five completed calendar quarters preceding the benefit year) or at least $1,000 in wages during the alternate base year (the last four of the past five completed calendar quarters preceding the benefit year). The requirement applies if the employee worked for more than one employer during the period and if the employee worked full or part time. Independent contractors and self-employed people can choose to be covered and are not automatically covered. Eligible employees may apply for up to 12 week of paid leave family, medical, or safe-leave benefits. If the leave is related to pregnancy, or childbirth, covered individuals are eligible for an additional two weeks of leave, for a total of 14 weeks. Employees may take leave starting September 3, 2023.
Reasons for leave include:
- To care for and bond with a child within the first 12 months of birth or placement;
- To care for a family member with a serious illness or injury;
- To care for an employee’s own serious illness or injury; or
- To take safe leave to address an incidence of domestic violence, harassment, sexual assault, or stalking.
The state defines “family member” as a spouse, parent, child, sibling, stepsibling, grandparent, grandchild, domestic partner, or individual related by blood or who lives with or is connected to the eligible employee like a family member.
Employers must post the Oregon Paid Leave Notice Model in the workplace and provide it to remote employees electronically or by mail by January 1, 2023. Employers can find additional resources on the Oregon Paid Family and Medical Leave Insurance website, such as an employer guidebook, an OFLA-FMLA comparison chart, fact sheets, checklists, and videos.
The law contains an anti-retaliation provision that protects employees who exercise their right to take Oregon Paid Leave.
How:
- Post the Oregon Paid Leave Model Poster by January 1, 2023. Provide the notice to remote employees electronically or by mail by January 1, 2023.
- Update your OPL policies and procedures to comply with the law.
- Provide a copy of your OPL policies and procedures to current employees and to new employees upon hire.
- Update your employee handbooks with the new information.
Additional Resources:
471-070-0010: Paid Family Medical Leave Insurance Rules
Oregon Paid Leave Model Notice Poster English
Oregon Paid Leave Model Notice Poster Spanish
Paid Leave Oregon Employers Website
Paid Leave Oregon Equivalent Plan Application
Paid Leave Oregon Employers of Oregon and Washington Letter on Place of Performance and Localization
Who: Oregon employers
When: Effective January 1, 2023
Governor Kate Brown signed SB 1586 on March 24, 2022, which amends the Oregon Workplace Fairness Act, effective January 1, 2023. The amendment further restricts what an employer may request in a settlement or separation agreement with a past, present, or future employee who is claiming discrimination under certain Oregon statutes.
Now, employers may no longer ask an employee to maintain confidentiality about the amount or fact of a settlement, unless an employee specifically requests such restriction. Employers are further prohibited from making a settlement or separation offer conditional upon an employee requesting the inclusion of restricted non-disclosure, non-disparagement, no-rehire, and/or confidentiality provisions in the agreement. No-rehire provisions may not prohibit an employee from seeking reemployment with the employer as a term or condition of the agreement.
Under the amended law, employers are required to provide their anti-discrimination policy to employees with whom they seek to enter into a settlement or separation agreement. In cases where an employer mediates claims covered by the Workplace Fairness Act with an employee who is not represented by an attorney, the amended law requires the mediator to provide the aggrieved employee with a copy of the model procedures and policies published by the Bureau of Labor and Industries under ORS 659A.375.
Aggrieved persons may file a civil action against an employer and have the potential to recover penalties up to $5,000, plus restitution for emotional distress or lost wages.
How:
- Review and update your separation and settlement agreements and related policies and procedures to ensure they comply with the law.
- Provide the workplace fairness policy to current employees and to new employees upon hire.
- Provide the workplace fairness policy to an employee with whom you seek to enter into an agreement.
- Consult with your legal counsel prior to negotiating or entering into a settlement or separation agreement with an employee.
Additional Resources:
Who: Oregon employers
When: Effective January 1, 2023
Paid Leave Oregon has created a temporary rule that changes how employers should count employees to determine “employer size.” The change impacts paid leave premiums that employers must start to collect on January 1, 2023.
Previously, employers counted the average number of employees over the previous four quarters using payroll reports to determine size. Now, employers must count the average number of employees on the 12th of each month for each of the prior twelve months. Employers will use those 12 numbers to calculate the average number of employees in the prior year, instead of using four numbers.
The definition of small and large employer is not changing. Those with 25 or more employees are considered large and are responsible for paying the employer portion of the paid leave premium. Those with fewer than 25 employees are considered small and are not responsible for paying the employer portion of the paid leave premium.
How:
- Update your policies to comply with the law.
Additional Resources:
Employer Size: Method to Determine Number of Employees Employed by an Employer
Who: Oregon employers
When: Effective immediately
What: On March 21, 2022, the Oregon Bureau of Labor and Industries (BOLI) made permanent its temporary rule that expands the reasons employees can use protected, paid sick and safe leave. The permanent rule became effective April 1, 2022.
In addition to the existing reasons employees may take leave under the law, they may now take leave for:
- An emergency evacuation order of level 2 or 3 issued by an authorized public official, if it affects the employer’s place of business or the employee’s home address;
- A determination by an authorized public official that the air quality or heat index would jeopardize the employee’s health if the employee continued to be exposed;
- A closure of the employee’s place of business, or the school or place of care of the employee’s child, by order of a public official due to a public health emergency;
- During a public emergency, a determination by a lawful public health authority or health care provider that the presence of the employee or the employee’s family member in the community would jeopardize the health of others, such that the employee must provide self-care or care for the family member; and
- During a public emergency, an exclusion of the employee from the workplace for health reasons under any law or rule.
How:
- Update your policies, HR manual, and employee handbook to comply with the law.
Additional Resources:
Who: Oregon employers
When: Effective January 1, 2022
What:
On June 11, 2021, Oregon’s Governor Kate Brown signed House Bill 2935—the CROWN Act—into law. CROWN stands for Creating a Respectful and Open World for Natural Hair. Effective January 1, 2022, the new law prohibits employers from discriminating against hair texture and protective hairstyles.
The law amends the Oregon Equality Act to expand the definition of race to include physical characteristics that are historically associated with race, including but not limited to natural hair, hair texture, hair type, and protective hairstyles. Protective hairstyle is defined as a hairstyle, hair color, or manner of wearing hair, including but not limited to braids, twists, or locs. The law protects all braids, including those created with extensions and those styled with adornments.
The existing law allows employers to create a valid dress code policy. The amended law specifies that the policy may “not have a disproportionate adverse impact on members of a protected class.”
How:
- Review your anti-discrimination policies, dress code, employee handbook; update as needed to ensure compliance with the new law.
- Update training materials to comply with the law.
Additional Resources:
Who: Oregon employers with 25 or more employees
When: Effective January 1, 2022
What: Oregon Governor Kate Brown signed House Bill 2474 on June 8, 2021, expanding employees’ eligibility for protected leave under the Oregon Family Leave Act (OFLA). The new provisions go into effect for employers with 25 or more employees on January 1, 2022.
Employees eligible for leave at the time of a separation from employment or temporary cessation of employment for any reason and are reemployed within 180 days are now eligible for OFLA leave. Employees who return or are reemployed after 180 days will not receive credit for prior service and must reestablish their eligibility for OFLA leave.
In addition, an employee is eligible for OFLA leave during a public health emergency (declared or defined under Oregon Revised Statutes as specified in the amendments) if the worker:
- Was employed for at least 30 days preceding the leave; and
- Worked an average of at least 25 hours per week in 30 days preceding the leave.
The new law adds a qualifying reason for “sick child leave” under OFLA: The employee needs to provide home care for a child because the child’s school or care provider closed due to a public health emergency. The employer may request certain documentation to support the need for leave.
The amendments also remove gendered language from the OFLA provisions related to pregnancy.
How:
- Review and update your existing policies and forms as needed to comply with the law.
Additional Resources:
Who: Oregon employers
When: Effective January 1, 2022
What: On May 21, 2021, Oregon Governor Kate Brown signed Senate Bill 169, effective on January 1, 2022, and applies to non-compete agreements entered into on the effective date or after. This law amends Oregon Statute 653.295 and updates limits on non-compete agreements as follows:
- The maximum post-employment term for such an agreement has been reduced to 12 months from 18 months.
- To be enforceable, the employee’s annual gross salary and commissions must exceed $100,533. This amount will be adjusted annually for inflation.
- Noncompliant agreements are automatically deemed void and unenforceable rather than “voidable.”
How:
- Review your restrictive covenant agreements and update as needed to comply with the law.
Additional Resources:
Who: Oregon employers
When: Effective January 1, 2022
What: Oregon Governor Kate Brown signed Senate Bill 569 on June 11, 2021, which goes into effect January 1, 2022. The law prohibits employers from asking current employees for a driver license as a condition of continued employment and from asking a prospective employee for a driver license as a condition of employment unless the ability to drive legally is an essential function of the job or is related to a legitimate business purpose.
Employers must accept any other form of identification that is deemed acceptable by the United States Citizenship and Immigration Services (USCIS) for purposes of verifying identification and for employment authorization.
How:
- Review and update your existing policies, processes, and forms to comply with the law.
Additional Resources:
Who: Oregon employers and employees
When: March 11, 2022
What: On February 24, 2022, the Oregon Health Authority announced that the statewide indoor mask mandate will sunset after 11:59 p.m. on March 11, 2022, 20 days before the initial date of March 31, 2022.
Following the sunset, employers and private businesses will still be able to enforce their own masking mandates for employees and visitors.
Oregon health experts continue to strongly recommend that high-risk individuals, the unvaccinated, and the immunocompromised continue to wear masks indoors after the requirement is lifted.
The lifting of masking requirements will also extend to Oregon public schools. The Oregon Health Authority has announced no current plans to lift masking requirements in state healthcare facilities. Face coverings will still be required for public transportation.
How:
Educate and inform your employees about local mandates and safety protocols.
Additional Resources:
Oregon Laws and Rules Governing the Public Health Decision
Oregon Mask Recommendations & Requirements
Oregon OSHA Workplace Advisory Memo 2.28.22 Requirements for Facial Coverings
Who: Oregon employers and employees
When: Effective immediately
What: On January 13, 2022, the Oregon Occupational Safety and Health Division announced that it will not move forward with adopting testing and vaccine requirements for employers. The announcement follows the U.S. Supreme Court’s decision to stay OSHA’s federal COVID-19 Vaccination and Testing Emergency Temporary Standard.
The federal ETS would have required employees in workplaces of over 100 to receive vaccination against COVID-19 or provide regular negative COVID-19 tests as a condition of continued employment. Oregon’s OSHA had previously announced plans to adopt similar guidelines for state employers. With this new announcement, those plans have currently been abandoned.
Despite the decision not to move forward with a statewide ETS, Oregon’s COVID-19 workplace rule and indoor masking requirement currently remain in effect.
How:
- Review your current policies and procedures and update them to comply with the announcement.
- Educate and inform your employees about state mandates and safety protocols.
Additional Resources:
Washington
Who: Renton, Washington covered employers
When: Effective July 1, 2024
The city of Renton, Washington, passed Measure No. 23-02 on February 13, 2024. Effective July 1, 2024, covered employers in Renton, Washington, must pay employees the new minimum wage. Large employers with 500 or more employees must pay $20.29 per hour for each hour worked within the city boundaries of Renton. Employers with 15 to 500 employees or an annual gross revenue of $2 million or more must pay $18.29 per hour. Both rates exceed the state’s minimum wage of $16.28 per hour. Tips and service charges paid to employees in the service industry do not count toward the employee’s hourly minimum wage.
The minimum wage will be adjusted annually based on the average growth rate of the Seattle-Tacoma-Bellevue Area Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) for the prior 12-month period.
There is no labor law posting or notice requirement.
The law requires employers to provide fair access to additional hours of work to existing, qualified part-time employees before hiring additional employees or subcontractors. It contains non-retaliation provisions as well.
The law states that employers are required to certify compliance with the Ordinance when they submit their annual Renton business license renewal application. Failure to certify compliance may result in denial or revocation of an employer’s business license.
Employers not covered by the City’s law must comply with the Washington state minimum wage law. The City of Renton Final Administration Rule was released on May 31, 2024.
How:
- Adjust your wage and hour policies to comply with the law.
- Familiarize yourself with the other provisions of the law and prepare to certify compliance when applying for business license renewal.
- Review the City of Renton Final Administration Rule.
Additional Resources:
City of Renton Final Administration Rule
Who: Washington employers
When: Effective June 6, 2024
Washington Governor Jay Inslee signed SB 5935 into law on March 13, 2024. It amends the Revised Code of Washington Chapter 49.62, clarifying certain provisions of the 2019 law that governs noncompete covenants. SB 5935 goes into effect on June 6, 2024.
The amendments:
- Define noncompetition covenant more broadly as an agreement that “directly or indirectly prohibits the acceptance or transaction of business with a customer”;
- Clarify that non-solicitation covenants may cover only current customers of the employer, not past customers;
- Clarify that a noncompetition covenant entered into as part of the sale of a business are excluded from the statute “only if the person signing the covenant purchases, sells, acquires, or disposes of an interest representing one percent or more of the business”;
- Require an employer to disclose the terms of a noncompetition covenant no later than the time of “initial oral or written acceptance of the offer of employment”;
- Voids any provision that “allows or requires the application of choice of law principles or the substantive law of any jurisdiction other than Washington state”;
- Clarify that employers must not “explicitly leverage” noncompetition covenants entered into before January 1, 2020; and
- Expands the private right of action to anyone aggrieved by the noncompetition covenant.
How:
- Review all of your existing restrictive covenants, template covenant agreements, and notification protocols and revise as needed to comply with the law.
- Consider formally rescinding noncompliant agreements entered into prior to January 1, 2020.
- Train managers and supervisors on the law.
Additional Resources:
Who: Washington employers
When: Effective immediately
Governor Jay Inslee signed SB 5979 into law on March 13, 2024. The law changes which construction workers qualify for paid sick leave upon separation from work. A construction worker is now defined as one who performed “service, maintenance, or construction work on a jobsite, in the field, or in a fabrication shop using tools of the worker’s trade or craft”. As of March 13, 2024, employers must pay out unused paid sick leave to construction workers when they separate from employment before completing 90 days of employment.
This requirement is different from the requirements set out in 2023 in ESSB 5111. Originally, “construction worker” was defined as any nonexempt employee, other than those performing residential building construction, covered under the North American Industry Classification System (NAICS) Code 23. The definition also included workers not directly engaged in the construction work itself, such as administrative staff.
Commercial construction workers covered by a collective bargaining agreement are exempt from this law.
How:
- Update your sick leave policies to comply with the law.
- Retain records that verify employment start and end dates and the amount of unused sick leave paid out.
Additional Resources:
North American Industry Classification System Sector 23—Construction
Washington State Department of Labor and Industries Paid Sick Leave
Washington State Department of Labor and Industries Paid Sick Leave for Construction Workers Q&A
Who: Bellingham, Washington employers
When: Effective immediately
Effective May 1, 2023, the minimum wage for the city of Bellingham, Washington is $17.28 per hour, which is $1.00 higher than the Washington State minimum wage. The new minimum wage applies to all hours worked within the city’s geographic boundaries.
Voters approved a minimum wage that is $2.00 per hour higher than the state’s minimum wage in the November 2023 election, and it will increase in phases. On May 1, 2025, the city’s minimum wage will be $2.00 per hour higher than the state’s. On January 1, 2026, and every year after, the city will set the minimum wage at $2.00 per hour higher than the state’s.
Employers must keep records of employee compensation and other data that prove compliance with the minimum wage law for five years.
The Bellingham ordinance states that adverse action occurring within 90 days of an employee exercising their rights under the ordinance is presumed to be retaliation. It provides for a private cause of action for individuals or classes of employees for five years following an alleged violation. The employee(s) can recover actual or statutory damages and attorney fees. The city may also issue penalties of $500 to $1,000 per employee per pay period for violations.
How:
- Update your record retention policies to comply with the law.
Additional Resources:
Who: Washington employers
When: Effective March 31, 2024, June 30, 2024, and July 23, 2024, for different covered entities
On April 27, 2023, Washington Governor Jay Inslee signed HB 1155—the Washington My Health My Data Act—into law, with various effective dates. The law regulates the collection, sharing, and selling of consumer health data.
It applies to regulated entities, which are businesses that sell services or products targeted to Washington consumers. A consumer is defined as any Washington resident or someone whose consumer health data is collected in Washington. A small business is defined as any regulated entity that 1) collects, processes, sells, or shares less than 100,000 consumers’ data in a calendar year or 2) derives less than 50% of its gross revenue from the collecting, processing, selling, or sharing of consumer health data, and controls, processes, sells, or shares fewer than 25,000 consumers’ health data.
Consumer health data is defined as personal information linked or reasonably linkable to a consumer that identifies the consumer’s past, present, or future physical or mental health status, including, but not limited to:
- Individual health conditions, treatment, diseases, or diagnosis;
- Social, psychological, behavioral, and medical interventions;
- Health-related surgeries or procedures;
- Use or purchase of prescribed medication;
- Bodily functions, vital signs, symptoms, or measurements thereof;
- Diagnoses or diagnostic testing, treatment, or medication;
- Gender-affirming care information;
- Reproductive or sexual health information;
- Biometric or genetic data;
- Precise location information that could reasonably indicate a consumer’s attempt to acquire or receive health services or supplies;
- Data that identifies a consumer seeking health care services; or
- Any information a regulated entity processes to identify a consumer’s data that is derived or extrapolated from non-health information.
Regulated entities may not collect consumer health data except with the consumer’s consent for a specified purpose or to the extent necessary to provide a product or service to the consumer. To collect data means to “buy, rent, access, retain, receive, acquire, infer, derive, or otherwise process consumer health data in any manner.” They may not share consumer health data except with separate consumer consent or if it’s necessary to provide a product or service.
Regulated entities may not sell or offer to sell consumer health data without separate written consent from the consumer. Sale is defined as the exchange of data for monetary or other valuable consideration.
Regulated entities must also restrict access to the data to those who need it for the purpose for which consent was given or to provide a product or service to that consumer. They must implement security measures to protect the confidentiality of the information. If a consumer requests deletion of the data, a regulated entity must comply within 45 days of receiving the request.
Regulated entities must publish a link to their consumer health data privacy policy on their website’s home page. The policy must meet the specific requirements stated in the law.
Consumers have several rights under the law, including:
- To confirm whether an entity is collecting, sharing, or selling their data;
- To access the data;
- To request deletion of their data; and
- To withdraw their consent.
As of July 23, 2023, the law prohibits implementing a geofence that uses any form of spatial or location detection to locate a consumer within a virtual boundary of 2,000 feet or less from the perimeter of a physical location if the geofence is used to 1) identify or track consumers seeking health care services; 2) collect consumer health data from consumers; or 3) send notifications, messages, or advertisements to consumers related to their consumer health data or health care services.
The Washington Attorney General is responsible for enforcing the provisions of the law. Consumers can also bring a private right of action against violators.
Regulated entities that are not small businesses must comply with sections 4 through 9 of the Act beginning March 31, 2024. Small businesses must comply with sections 4 through 9 beginning June 30, 2024. All persons must comply with section 10 (geofences) of the Act beginning July 23, 2023.
How:
- Revise your consumer health data privacy policy and publish a link on your home page.
- Review or develop your opt-in procedures and publish an opt-in consent form that meets the requirements of the law.
- Update your process for deleting consumer health data upon request.
- Update your consumer health data procedures and policies related to recordkeeping, data storage, security, and data processing.
- Implement annual consent reminders for data sales.
Additional Resources:
Protecting Washingtonians’ Personal Health Data and Privacy FAQs
Who: Washington employers
When: Effective January 1, 2024
The Washington Employment Security Department (WESD) announced new Paid Family and Medical Leave (PFML) 2024 premium rates. The agency calculates the rate every October, which is based on premiums received and benefits paid the previous year. Beginning January 1, 2024, the rate will decrease from 0.80% to 0.74% of gross wages up to the Social Security cap ($168,600 in 2024), with employers paying 28.57% of the total premium and employees paying 71.43%.
The law applies to all Washington employers, with very few exceptions. Employers with 50 or more employees can pay the entire premium themselves or withhold the employee’s portion of the premium and remit the employer premium. Those with fewer than 50 employees must withhold the premium from each employee’s paycheck and remit it on their behalf or pay the premium on the employees’ behalf.
Federal employees and “casual laborers” are exempt. Federally recognized tribes and self-employed individuals are exempt, but they may choose to opt in to PFML.
In 2024, the maximum weekly benefit will be capped at $1,456.00 per week.
Employers should inform employees about the rate changes. The WESD published an updated poster, paycheck insert, and employer toolkit.
Another change starting in 2024 is that employers can ask the Employment Security Department to provide information about an employee’s approved PFML, including:
- Type of leave taken;
- Requested duration of the leave, including approved dates of leave;
- Remaining hours of leave available;
- Weekly benefit amount; and
- Actual benefits paid and hours claimed.
This information will help employers better plan for an employee’s absence and let the employer know when they can expect the employee to return to work. It will also help employers administer concurrent leave and supplemental benefit programs. Employers are responsible for safeguarding employee information.
How:
- Post the updated Paid Family and Medical Leave poster.
- Update your paid leave policies and procedures to comply with the law.
Additional Resources:
Washington Paid Family and Medical Leave Poster English
Washington Paid Family and Medical Leave Poster Spanish
Who: Washington employers
When: Effective January 1, 2024
Starting January 1, 2024, employers may not 1) discriminate against applicants that use nonpsychoactive cannabis while off duty or 2) refuse to hire an applicant solely based on a positive pre-employment drug test that shows nonpsychoactive cannabis metabolites in their system.
The law does not apply to:
- Positions requiring a federal government background investigation or security clearance;
- Law enforcement, fire department, first responder, and corrections officer positions;
- Positions in the airline or aerospace industries; and
- Safety-sensitive positions for which impairment while working presents a substantial risk of death.
Employers retain the right to mandate a drug-free workplace; test applicants for drugs other than cannabis, including alcohol; and conduct a drug test in other situations where they suspect impairment on the job, such as post-accident or reasonable suspicion.
How:
- Review and update your drug and alcohol use policy and your drug-testing policies and procedures to comply with the law.
- Revise your employee handbooks.
- Review your collective bargaining agreements to ensure compliance.
- Review which positions qualify as exceptions under the law, including which are “safety sensitive.”
- Consult with your drug-testing laboratories to ensure their methodologies comply with the law.
Additional Resources:
Who: Washington State employers
When: Effective July 1, 2023
Payroll tax withholding, remittance, and reporting under the Washington State Long Term Care Act’s Washington Cares Fund commence July 1, 2023. Governor Jay Inslee signed House Bills 1732 and 1733 on January 27, 2022, to delay the collection of the tax due to legal challenges to the law. Benefits will not be available until July 1, 2026.
Employers must deduct a payroll tax equal to 0.58% of employees’ wages to pay for long-term care insurance premiums. An employee may submit an exemption request to the State and, if granted, submit it to the employer by July 1, 2023, to avoid the tax deduction. Exemptions become effective the quarter following approval. Employers may not give refunds for contributions made before the exemption was granted.
How:
- Notify employees about the payroll tax deductions and that they can submit a request for exemption.
Additional Resources:
Who: Washington state employers
When: By May 26, 2023
The Washington State Department of Labor & Industries published a draft administration policy to address tips, gratuities, and service charges. The state invites the public to provide comments on the policy by May 26, 2023, either by email or online.
The policy includes examples that help answer employee questions and employers comply with the Washington Minimum Wage Act. The topics are: tips and wages, tip pooling, service charges, paydays, and deductions.
The agency hosted a virtual feedback session on April 5, 2023, and will host a second on May 15, 2023.
How:
- Submit comments on the draft policy by May 26, 2023.
- Continue to monitor the agency’s website for updates.
Additional Resources:
Washington Minimum Wage Act RCW 49.46.020(3)
Submit Comments Online Tip, Gratuity, and Service Charge Examples
Who: Seattle, Washington employers
When: Effective immediately
On February 23, 2023, Seattle’s Mayor signed the CB 120511 ordinance, which went into effect on March 25, 2023. The law bans caste discrimination and is the first of its kind in the nation. It amends Seattle’s anti-discrimination ordinance to add caste as a protected class in various arenas, including employment, housing, and public accommodations.
Caste is defined as a system of rigid social stratification characterized by hereditary status, endogamy, and social barriers sanctioned by custom, law, or religion. In Hinduism and related religious traditions, it refers to:
- The four “varnas” that stratify society, including Brahmins (priests), Kshatriyas (warriors and rulers), Vaishyas (merchants and farmers), and Shudras (artisans and laborers), plus people with no caste—Dalits (formerly referred to as “untouchables”) and Adivasi (indigenous peoples of India).
- “Jātis,” which are groups of people bound together by occupation, geography, or descent.
The law acknowledges that caste systems exist in “Christian, Muslim, Sikh, and other religious communities, all over South Asia, and in Southeast Asian and African communities, including Japan, the Middle East, Nigeria, Somalia, and Senegal.”
How:
- Update your anti-discrimination and harassment policies and procedures to comply with the law.
- Train HR personnel to understand caste and how it is protected in all areas of employment.
Additional Resources:
Who: Seattle, Washington employers
When: Effective January 1, 2023
Effective January 1, 2023, the minimum wage for employees in Seattle, Washington will increase to $18.69 per hour for employers with 501 or more employees. For employers with 500 or fewer employees, the minimum wage will be $16.50 per hour if they pay $2.19 per hour toward medical benefits and/or their employee earns $2.19 per hour in tips. Otherwise, the business must pay $18.69 per hour.
The increase is indexed to the rate of inflation based on the latest Consumer Price Index for Seattle-Tacoma-Bremerton.
How:
- Post the new minimum wage poster.
Additional Resources:
Seattle Washington Labor Standards Workplace Poster English
Who: Washington employers
When: Effective January 1, 2023
Effective January 1, 2023, the minimum wage for the state of Washington will increase from $14.49 per hour to $15.74 per hour. The salary threshold for exempt employees will increase to $57,293.60 per year for employers with one to 50 employees. For employers with 51 or more employees, that threshold will increase to $65,478.40 per year.
Computer professionals who are paid on an hourly basis must earn at least $55.09 per hour to be considered exempt. The minimum wage for workers aged 14 or 15 will be $13.38 per hour.
The Washington State Department of Labor & Industries compares the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) in August of the current year to August of the previous year each year in September to determine the next year’s minimum wage and salary threshold for exempt employees.
There are two municipalities that have a higher minimum wage than the state of Washington: the cities of Seattle and SeaTac.
How:
- Post the new minimum wage poster.
- Ensure that the hourly pay rates of your non-exempt/hourly employees are at or above the new minimum wage.
- Ensure that you meet the minimum salary thresholds for exempt/salaried employees.
Additional Resources:
Washington Minimum Wage Poster English
Who: State of Washington employers with 15 or more employees
When: Effective January 1, 2023
Washington Governor signed SB 5761 into law on March 30, 2022, effective January 1, 2023. The law amends the Washington Equal Pay and Opportunities Act and requires employers to list the wage scale or salary range and benefits on job postings. The pay must specify a high and low number, a starting pay or range, and the pay range for each level when there a job has multiple levels. Other types of “compensation” the posting must include are discretionary bonuses, stock options, commissions, profit-sharing, or other type of remuneration.
The law applies to employers with 15 or more employees (that live anywhere in the U.S.) and at least one employee who works in Washington. It also applies to remote positions filled by workers who live and work in the state of Washington and employers that do not have a physical presence in Washington if that employer has one or more Washington-based employees. Employers can’t circumvent the law by stating they won’t accept applicants from Washington.
The posting must include a general description of the benefits the employer offers, including medical, dental, vision, life, or disability insurance; retirement plans; PTO time; paid holidays; and parental and sick leave. It must also include information about fringe benefits that are taxable. Electronic postings may include a link to a more detailed description of benefits.
Current employees that are promoted or transferred can request the salary information for the new position.
Violators face penalties of actual damages or $5,000 (whichever is greater), civil penalties ranging from $500 to $1,000 per violation, and costs and reasonable attorneys’ fees.
Washington has released a draft administrative policy that has not yet been released in its final form.
How:
- Complete a pay equity audit.
- Update all job postings to include the high/low salary range and benefit details, and include the required information on all new postings.
- Review your internal policies and update them as needed to comply with the law.
- Train HR personnel, supervisors, and managers on how to comply with the law and the implications of non-compliance.
Additional Resources:
Washington Draft Administrative Policy
Washington Equal Pay and Opportunities Act – Draft Administrative Policy Website
Who: Businesses that hire independent contractors who will perform the services in Seattle, Washington
When: Effective immediately
What: The Seattle City Council passed an Independent Contractor Protections Ordinance, which became effective September 1, 2022. The purpose is to increase pay transparency and to force timely payment to independent contractors.
Seattle employers must now provide disclosures to independent contractors, including a pre-work written notice before signing a contract. The notice must contain information such as the date, location, and description of work; compensation; pay schedule; names of those doing the contract work; and type of business. The Seattle Office of Labor Standards has provided a sample notice.
Businesses must timely pay contractors in accordance with the terms of the pre-work written notice or contract, or within 30 days of completion of services if not otherwise specified. In addition, the business must give the contractor written notice that specifies itemized payment information each time they make a payment. The Seattle Office Labor Standards has provided a sample notice.
To fall under the new law, the independent contractor must not have employees and must perform the services in whole or in part in the city of Seattle. In addition, the compensation paid to the contractor in a calendar year must be $600 or more. The law applies to all eligible contracts, regardless of where the hiring entity is located.
The Seattle Office of Labor Standards has also released the final administration rules related to the ordinance. Before contracting with any independent contractor on September 1, 2022, or later, the business must give the contractor a notice of rights and a pre-work written notice. Businesses must provide the notice of rights and pre-work written notice to existing independent contractors by September 30, 2022.
How:
- Provide the required notice of rights and a pre-work written notice to all contractors you sign an agreement with on September 1, 2022, or thereafter.
- Provide the required notice of rights and a pre-work written notice to all existing contractors by September 30, 2022.
- Provide an itemized payment written notice each time you pay a contractor.
Additional Resources:
Seattle Independent Contractor Protections Ordinance
Seattle Independent Contractor Protections Ordinance Notice of Rights Rev 8-2022
Seattle Office of Labor Standards Pre-Work Written Notice (Sample)
Seattle Office of Labor Standards Written Notice – Itemized Payment Information (Sample)
Seattle Independent Contractor Protections Ordinance Fact Sheet
Chapter 140 Practice and Procedures for Labor Standards Enforcement
Who: Washington State employers with 15 or more employees
When: Comments due by August 12, 2022
What: The Washington Department of Labor is seeking public comment on its draft administrative policy related to the state’s new salary disclosure law. Comments are due by August 12, 2022.
Once the administrative policy is formally adopted, it will contain the final rules for complying with Washington’s recently amended Equal Pay and Opportunity Act. The law requires employers to include salary ranges in all job postings, plus a general description of benefits and all other compensation.
The draft administrative policy helps employers understand how they can begin to comply with the wage transparency law, which becomes effective January 1, 2023, and applies to employers with 15 or more employees. Key provisions of the draft policy advise employers to take the following actions, when applicable:
- Include the starting and post-training pay ranges;
- Include the salary ranges for each job title when a position could be filled with varying job titles;
- Include the commission rate; and
- Include or link to the general description of all benefits, but there’s no need to include the dollar amount of the benefits.
General “Help Wanted” signs do not need to include salary or benefit information.
How:
- Submit your comments on the draft administrative policy by August 12, 2022, on the Washington DOL website or by email at ESRules@Lni.wa.gov.
- Monitor for guidance and updates from the Washington State Department of Labor and Industries.
Additional Resources:
Equal Pay and Opportunities Act – Draft Administrative Policy
Who: Washington state employers with 50 or more employees
When: Effective June 9, 2022
What: Washington state amended its Paid Family and Medical Leave (PFML) Act, effective June 9, 2022. The law applies to employers with 50 or more employees.
The amendment states that employees may take paid family leave for bereavement purposes for seven calendar days after the death of a qualifying family member. Such a member is one for whom the employee would have qualified for medical leave for the birth of their child or to bond with their child following birth or placement.
The amendment states that if a person is incapacitated due to pregnancy or for prenatal care, the first six weeks of that leave is counted as paid medical leave unless the employee chooses to use paid family leave. No certification of condition is required. Other related provisions remain in effect.
The Washington Employment Security Department will publish on its website a current list of employers that run their own voluntary plans that the agency approved.
In the past, the PFML did not apply to any employee who was subject to a collective bargaining agreement in existence on October 19, 2017, until such point as the agreement expired or was reopened or renegotiated. That exception will now expire on December 31, 2023.
How:
- Review your policies to ensure compliance with the amended law.
Additional Resources:
Who: Washington state employers
When: Effective June 9, 2022
What: On March 24, 2022, Governor Jay Inslee signed into law HB 1795, the “Silenced No More Act.” The law becomes effective June 9, 2022, and rescinds the 2018 law passed in response to the #MeToo movement. The law broadens prohibitions against nondisclosure and nondisparagement provisions that restrict employees from disclosing or discussing violations of clear mandates of public policy or laws related to discrimination, harassment, retaliation, wages and hours, or sexual assault. “Employee” is defined as a current, former, or prospective employee or independent contractor.
Employers are permitted to prohibit employees from disclosing the amounts of settlement payments. Employers are also permitted to prohibit employees from disclosing any trade secrets, proprietary information, or information that does not involve illegal acts.
Employers who require employees to sign or even request an employee to sign a prohibited nondisclosure agreement can be fined $10,000 or actual civil damages—whichever is greater—for each violation, plus the employee’s reasonable attorneys’ fees and costs.
The law is retroactive and voids violating nondisclosure and nondisparagement provisions in employment agreements created before June 9, 2022. The same retroactive application does not apply to similar provisions found in settlement agreements.
How:
- Review nondisclosure and nondisparagement clauses in employment and severance agreements to ensure they comply with the new law.
- Consult with your legal counsel before seeking to enforce nondisclosure provisions in prior employment agreements.
Additional Resources:
Who: Washington state private and public employers
When: Initially expected to take effect on January 1, 2022, in late December, Governor Inslee ordered the Employment Security Department not to collect the tax or issue penalties to employers before April 1, 2022.
What:
Washington State House Bill 1323 was signed into law in 2019 and is set to go into effect on January 1, 2022. The law amends the Revised Code of Washington (RCW) 50B.04 and requires employers to collect a long-term care insurance premium payroll tax of 0.58% from employees, with no cap. Employers must remit the tax collected from employees to the state quarterly. This is an employee-funded fund; employers do not contribute to this fund.
Covered employees are those who perform their work entirely in the state of Washington or whose work is localized in Washington. Exceptions apply to employees who have already obtained an exemption, federal tribes, self-employed individuals, and collective bargaining agreements in existence as of October 19, 2017.
A class-action lawsuit has been filed against Washington State’s Long-Term Services and Supports Trust Act to enjoin the state from collecting the tax and enforcing the Act. There is also a pending citizens’ initiative to make participation in the long-term care insurance plan optional. As of now, however, employers must move forward with tax collection starting on January 1, 2022.
How:
- Implement a process for collecting and remitting the tax and tracking employee exemptions.
Additional Resources:
Who: Washington employers
When: Effective January 1, 2022
What:
Effective January 1, 2022, noncompete covenants are valid only if the thresholds of earnings are as follows:
- Employees: $107,301.04
- Independent contractors: $268,252.59
The new amounts increased from last year and have been adjusted according to the federal Bureau of Labor Statistics’ Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W).
“Earnings” is defined as the compensation reported on Box 1 of Form W-2 for employees or payments reported on a Form 1099-NEC for independent contractors. Noncompete agreements for employees or independent contractors whose earnings do not meet these thresholds are considered void and unenforceable under the Revised Code of Washington (RCW) 49.62.
How:
- Review your non-competition covenants and update them to ensure they comply with the new earning thresholds.
Additional Resources:
Who: Employers in Washington
When: Effective October 1, 2024
Washington State Department of Labor and Industries (L&I) adopted permanent sections into the Washington Administrative Code (WAC) regarding voluntary PPE use in the workplace. This does not change or supersede the usage requirements for PPE required by the workplace’s PPE hazard assessment.
Employees who choose to wear PPE voluntarily when it is not required by the employer are allowed to do so, provided that it meets the following requirements:
- It does not introduce additional hazards into the workplace.
- It does not interfere with the employer’s security requirements.
- The employer must verify that the PPE meets the required regulatory quality standards for the item (i.e. American National Standards Institute (ANSI) rating or National Institute for Occupational Safety & Health certification).
- The usage does not conflict with other regulatory standard requirements, such as those for respiratory protection. Note: This rule states that the employer does not have to permit the voluntary use of respirators other than filtering-facepiece style respirators.
The employer is not required to purchase, maintain, or store the PPE that an employee chooses to use voluntarily.
How:
- Review the new text as applicable to your workplace:
- WAC 296-800-16080 for general industry
- WAC 296-155-249 for construction
- WAC 296-307-10030 for agriculture
- Review your PPE Hazard Assessment to ensure it is up-to-date based on current workplace hazards.
- Ensure employees understand their rights and requirements in regard to PPE.
Additional Resources:
Who: Washington employers and employees
When: Effective immediately
What: Last year, the state legislature updated the Washington Industrial Safety and Health Act (WISHA) specifically to the discrimination practices which took effect July 1, 2022. To coincide with the updates, the Washington Department of Labor and Industries instated rules that Washington OSHA the authority to issue citations and notices of assessments to provide relief to workers and penalties to employers.
Although the state is following a similar process to Section 11(c) of the Occupational Safety and Health Act, its causation standards are different and employers should understand them. The state uses a “substantial factor” causation test, which means that when an employee is engaged in a protected activity, it must have been a “substantial factor” in the employer’s decision to take adverse action. The state’s test allows for a violation when an employee can show:
- That the protected activity was a substantial reason for the adverse action
- The adverse action wouldn’t have occurred “but for” being engaged in the protected activity.
Employees have up to 90 days to file a WISHA compliant with Washington OSHA. Washington OSHA has 90 days to inform the employer about its decision regarding the violation. If the agency determines a violation didn’t occur, the employee has 30 days to initiate their own action. If the agency decided that a violation did occur, Washington OSHA has the authority to order the employee to be restored to their old position, with equivalent terms and conditions of employment, order back pay with interest, and subject the employer to an additional penalty.
Penalties can range based on the employer’s size, $5,000 for employers with less than 25 employees to $14,000 for employers with 251 or more employees. Repeat violations will be subject to a multiplier effect, with penalties increasing three-fold for single violations or five-fold for more than a single violation in five years. When a penalty has been assessed or relief ordered, employers have 30 days of receipt to notify the department if they intend to appeal.
How:
- Review your current policies and procedures regarding adverse actions.
- Be sure to consult with legal counsel when necessary.
Who: Washington employers and employees
When: Effective immediately
What: On June 15, 2022, the Washington Department of Labor and Industries readopted a set of wildfire smoke inhalation emergency rules. The rules are almost identical to a set of rules that were adopted and expired in 2021. In particular, the new set of rules is directed towards particulate matter with an aerodynamic diameter of less than 2.5 micrometers (PM 2.5). The new rules now require the following:
- Employers are required to provide hazard communications to employees when:
- At least two consecutive PM2.5 readings are 20.5 µg/m3 (AQI 69) or more;
- The PM2.5 is 35.5 µg/m3 (AQI 101) or more;
- The PM2.5 is 250.5 µg/m3 (AQI 301) or more; or
- The PM2.5 is 555 µg/m3 (beyond the AQI) or more.
- Employers must implement engineering and administrative controls whenever PM2.5 reaches 35.5 µg/m3 (AQI 101) and such controls are feasible.
- Employers must supply respiratory protection for employees to use on a voluntary basis whenever PM2.5 reaches 35.5 µg/m3 (AQI 101).
- Where the PM2.5 is 555 µg/m3 or more, employees must be enrolled in a complete respiratory protection program in accordance with chapter 296-842 WAC. At this level, employees must be provided one of the following types of respiratory protection with high-efficiency particulate air filters: A loose-fitting powered air purifying respirator (PAPR), full-facepiece PAPR, full-facepiece air purifying respirator, or another respirator that is at least as effective.
The previous requirements include:
- Determining PM2.5 levels at worksites by checking one of the listed web-based sources or directly measuring PM2.5 at the worksite.
- Training both supervisors and line staff who may be exposed to PM2.5 levels of 20.5 µg/m3 (AQI 69) or above on the hazards of wildfire smoke and the procedures regarding the employer’s plan for ensuring workers are protected from wildfire smoke.
- Monitoring and allowing for medical care for employees who display symptoms of illness related to wildfire smoke.
How:
- Be sure to review your current wildfire smoke inhalation policies and procedures. Update them accordingly to comply with these new requirements.
- Communicate with managers and employees about the changes to your procedures.
Who: Washington employers and employees
When: Effective immediately
What: On June 15, 2022, the Washington Department of Labor and Industries adopted a set of heat exposure emergency rules. The rule identifies three “trigger temperatures” each depending on the clothing worn:
- 52°F – Nonbreathable clothes, including vapor barrier clothing or PPE, like chemical resistant suits
- 77°F – Double-layer woven clothes including coveralls, jackets, and sweatshirts
- 89°F – All other clothing
The emergency rules require access to shade or other cooling methods to accommodate all workers on a meal or rest break at any of the three trigger temperatures. Employees must be allowed and encouraged to take a preventative cool-down rest in the shade or other means provided by the employer to reduce body temperature when they feel they are overheating.
At the trigger temperature of 89°F, the emergency rules also require paid mandatory cool-down rest periods of at least 10 minutes every two hours and effective communication by voice, observation, or electronic means. Employers are required to closely observe employees for signs and symptoms of heat-related illness. The current rules require employers respond to workers showing signs and symptoms of heat-related illness and this requirement provides clarity on the expectation that employers affirmatively monitor employees to identify those showing signs and symptoms.
When temperatures exceed one of the three trigger temperatures, employers are required to:
- Have and maintain one or more areas with shade at all times while employees are present. That area(s) must be able to accommodate the number of employees on a meal or rest period so they can sit in a normal posture fully in the shade.
- The shade shall be located as close as practicable to the areas where employees are working and not adjoining a radiant heat source.
- In lieu of shade, employers may use other sufficient means to reduce body temperature provided by the employer under the existing requirement to have sufficient means to reduce body temperature when employees show symptoms of heat-related illness.
When temperatures are at or exceed 89°F, employers must:
- Ensure that employees take mandatory cool-down rest periods of at least 10 minutes every two hours. The mandatory cool-down rest period may be provided concurrently with any other meal or rest period;
- Ensure that effective communication in maintained by voice, observation, or electronic means so that employees and supervisor(s) can contact each other when necessary. An electronic device, such as a cellular phone or text messaging device, may be used for this purpose only if reception in the area is reliable; and
- Closely observe employees for signs and symptoms of heat-related illness by:
- regular communication with employees such as by radio or cellular phone;
- a mandatory buddy system; or
- other effective means of observation.
In addition, the new rules:
- Specify that employees must be allowed and encouraged to take a preventative cool-down rest in the shade or use another means provided by the employer to reduce body temperature when they feel the need to do so to protect themselves from overheating.
- Update the training requirements for employers and supervisors to include preventative cool-down rest periods and mandatory cool-down rest periods under the high-temperature procedures.
- Define the term “shade” as “a blockage of direct sunlight,” such that objects do not cast a shadow in the area of blocked sunlight. Shade is not adequate when heat in the area of shade defeats the purpose of shade, which is to allow the body to cool (e.g., inside a car that is not running), or if, by its nature, employees are discouraged from using it.
- Further define the term “acclimatization” and encourage acclimatization procedures for all employees.
- Clarify that environmental factors for heat-related illness include clothing worn by employees.
- Clarify that drinking water is kept cool in temperature.
- Clarify that time during preventative cool-down rest and mandatory cool-down rest periods must be paid unless taken during an unpaid meal break
How:
- Be sure to review your current heat-related policies and procedures. Update them accordingly to comply with these new requirements.
- Communicate with managers and employees about the changes to your procedures.
Who: Washington employers and employees
When: Effective immediately
What: On February 9, 2022, Washington Governor Jay Inslee announced that the statewide outdoor mask mandate for outdoor gatherings of over 500 people would end on February 18th, 2022. Additionally, the end date for the state indoor masking mandate has been moved up from March 21 to March 12, 2022.
Amid declining cases of COVID-19 and hospitalizations across the state, masking will no longer be required for visitors of grocery stores, retail shops, bars, restaurants, and most other indoor establishments. Masking will also no longer be required for students and educators in Washington’s K-12 schools.
Per Governor Inslee’s announcement, private businesses still have the right to determine their own individual masking requirements for employees and patrons after March 12th. Local jurisdictions may adopt additional masking requirements beyond the state guidance.
Following March 12th, masks will still be required in Washington hospitals, nursing homes, dental offices, homeless and emergency shelters, correctional facilities, as well as on public transit.
How:
Educate and inform your employees about state mandates and safety protocols.
Additional Resources:
Washington State Department of Health Masks and Face Coverings
