Washington’s Secretary of Health signed an order on May 15 allowing fully vaccinated persons to forego masking requirements statewide except in healthcare settings, correctional facilities, homeless shelters, and schools. 

Additionally, the Washington Department of Labor & Industries (L&I) issued new mandate on May 21 allowing fully vaccinated employees to forego masking requirements and physical distancing at the workplace if proof of vaccination is provided to the employer. 

Fully vaccinated means two weeks after the single-dose Johnson & Johnson vaccine is administered or two weeks after the final dose of the Pfizer or Moderna two-dose vaccine is administered.

This alert provides a summary of the new requirements. Every situation is potentially unique, and Bullard Law attorneys are available to discuss the current requirements. 

Washington Secretary of Health Order Regarding Generally Applicable Masking Requirements Statewide

On May 15, the Washington Secretary of Health signed Order No. 20-03.2, amending prior Order No. 20-03, allowing fully vaccinated persons to forego masking requirements statewide, unless in healthcare settings, correctional facilities, homeless shelters, or schools.

Businesses and places open to the public may still require masking or have more stringent requirements than those stated in the Order. Businesses are permitted to use an “honor system” and trust customers and visitors if they say they are vaccinated – no “carding” is required. Note, this is different than Oregon’s guidance which requires businesses to request and review vaccine verification. See Alert on Oregon’s guidance here. Conversely, businesses are permitted to ask customers and visitors for proof of vaccination and can require the customer or visitor to comply with the masking requirement if the customer or visitor is unable to provide proof of vaccination.

The masking requirements remain in place for persons not fully vaccinated. These requirements mandate face masks, face coverings, or face shields for all persons statewide outside the home except:
 

1. outdoors with six-foot physical distancing;
2. small gatherings of vaccinated persons or unvaccinated persons from a single household with no one at heightened risk for severe illness from COVID-19;
3. while sleeping, eating, drinking, showering, bathing;
4. if anyone in the party involved in communication is deaf or hard of hearing;
5. if obtaining services requiring temporary removal (e.g., beauty salons);
6. if needed to confirm identification or required by law enforcement;
7. if the person is unable to mask due to an emergency;
8. if under five years old; or
9. persons with medical/mental conditions or disabilities preventing mask wearing.

Washington Department of Labor & Industries Updated Guidance for Workplaces Statewide

On May 21, the Washington Department of Labor & Industries (L&I) issued updated guidance for workplaces, amending prior guidance, allowing fully vaccinated workers to forego masking and physical distancing requirements statewide, provided proof of vaccination is provided to the employer.

Employers bear the burden of confirming workers are fully vaccinated.  Workers must provide the employer with either a signed attestation of full vaccination or other proof of vaccination. 

Acceptable forms of proof of vaccination include:
 

1. CDC vaccination card or photo of the card.
2. Documents from a healthcare provider.
3. Signed attestation of full vaccination.
4. Documentation from the state vaccination information system.

L&I provides examples of ways employers can maintain this vaccination information, including:
 

1. creating and maintaining a log or workers who have provided acceptable proof of vaccination and the date of verification;
2. physically checking vaccination status each day as each worker enters the job site;
3. marking a worker’s badge or credential to show the worker is fully vaccinated; or
4. other methods that sufficiently show the worker has provided proof of being fully vaccinated.

If workers are not fully vaccinated or are unable or unwilling to provide sufficient proof of being fully vaccinated, then all masking and physical distancing requirements remain in place.

Employers can maintain more stringent masking and physical distancing requirements if they so choose, including requiring masking even if a worker is fully vaccinated and provides proof of vaccination. Additionally, employers must allow workers to continue wearing masking or other protective equipment if the worker so chooses, unless the worker’s doing so creates a workplace hazard, interferes with an employer’s security requirements, or the worker’s protective equipment conflicts with other L&I or Department of Health requirements. 

Employers cannot fire or otherwise discriminate against any worker who is at high risk of contracting serious illness from COVID-19 and seeks an accommodation to protect the worker from COVID-19 exposure. Additionally, all federal and state leave laws, disability laws, anti-discrimination laws, and anti-retaliation laws remain applicable. Consultation with an attorney is advised for unique worker situations, including accommodation requests.

Other Local and Special Guidance Remains Applicable

Local public health authorities may impose more stringent masking requirements than those in the Secretary of Health’s Order and L&I’s new guidance. County public health authority websites should be consulted to determine if more stringent masking requirements exist.

K-12 schools must continue to follow specially applicable guidance for schools. Additionally, healthcare settings, correctional facilities, homeless shelters, childcare centers, and day camps must continue to follow specially applicable guidance for those settings. 

The federal order requiring masking on all public transportation remains in place, including for buses, trains, and airplanes. The U.S. Centers for Disease Control (CDC) guidance also generally remains applicable, which is largely incorporated in the Secretary of Health’s Order and L&I guidance. 



The content of this Alert is provided for general information purposes only. It should not be considered legal advice or used as a substitute for consulting an attorney for legal advice.