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 August 16, 2022

Background

Washington State Department of Labor & Industries (L & I) has updated two emergency workplace safety and health rules, Public Health Emergency Reporting and Notification Requirements for Infectious and Contagious Diseases, Washington Administrative Code (WAC) 296-62-601, and Public Health Emergency Voluntary Personal Protective Equipment Usage, WAC 296-62-609. These rules were originally adopted on August 10, 2021 with the most recent update in August 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”, located at RCW 49.17.062 and RCW 49.17.064
  • Requirements for employers to accommodate voluntary use of personal protective equipment (PPE) and facemasks during a public health emergency; based on RCW 49.17.485

The August 2022 update has requirements for all employers including health care facility employers (as defined by RCW 9A.50.010). Updates include:

  • Requirements for health care facility employers and high risk exposures in Washington Administrative Code (WAC) 296-62-606.Written notification of a high risk exposure in 24 hours using normal business communication means in English and the language understood by the majority of employees.
    • The notification content must not to include any employee names or personal identifying information.

Both rules have updated and consolidated the definitions in a separate section

The following questions and answers may help you understand and comply with the new rules, WAC 296-62-601 and WAC 296-62-609

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 at health care facilities employers as defined by RCW 9A.50.010. The requirements will remain in effect until the declared public health emergency ends.

Employers must report to DOSH by calling 1-800-4BE-SAFE (1-800-423-7233), and use the option to report fatalities, hospitalizations, amputations, or loss of an eye. Do not report any employee names or personal identifying information.

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?

  • A person employed in a business by an employer. OR
  • A temporary worker engaged in work under an independent contract –supervised by a secondary (host) employer.

For more information, see WAC 296-62-602(3) Covered Employee, WAC-296-27-02103 Covered Employees, and DOSH Directive 1.15 Dual Employers and DOSH Enforcement - DOSH Directive (DD) 1.15 (wa.gov)

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). Follow the option for “reporting fatalities, hospitalizations, amputations or loss of an eye.” Do not include any employee name(s) or personal identifying information.

Note: Employers must also report to DOSH COVID-19-related workplace deaths and hospitalizations as required by WAC 296-27-031. Different disclosure requirements for employee information apply.

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. You will find the requirements in WAC 296-62-605 for non-health care employers and WAC 296-62-606 for health care facility employers.

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 with a laboratory test for COVID-19; or
  • Received a positive diagnosis by a licensed health care provider; or
  • Ordered to go into isolation by a public health official related to COVID 19; or
  • Has died due to COVID-19, as determined by a local health department..

Are health care facilities covered by the notification requirements?

Yes, the August 2022 release of WAC 296-62-606 includes notification requirements for health care facility employers as defined by RCW 9A.50.010.

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

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

What if I have 50 or fewer employees?

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. Notification to employees must occur within one business day.

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.

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 employers of a covered employee.

What does the notice have to state for non-health care?

The notice must state that the covered employee may have been exposed to COVID-19. See WAC 296-62-605(2)(b).

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

No. Written notices to covered employees must not include any employee name(s) or personal information. For example: employers that send notices by email must use methods that avoid inadvertent disclosure names or personal information. Sending email using their system’s blind carbon copy function (bcc) or by sending individual emails to each employee (email contains a single recipient and no other individuals sees the email) would meet that requirement.

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 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.

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 Employers) WAC 296-62-606

What is a Health Care Facility employer?

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 facility employers notify covered employees?

Health care facility employers 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 does high-risk exposure mean in healthcare facility employers?

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

  • Sharing the same indoor airspace as a qualifying individual for a cumulative total of 15 minutes or more over a 24-hour period; or
  • In the same room as a qualifying individual who is undergoing an aerosol-generating procedure. You will find a list of aerosol-generating procedures in Precautions During and Following Aerosol Generating and Other Procedures, on page 16 of the April 22, 2022, version of the Washington state Department of Health publication Interim Recommendations for SARS-CoV-2 Infection Prevention and Control in Healthcare Settings. This is available at https://doh.wa.gov/sites/default/files/2022-06/420-391-HealthcareIPCCOVID.pdf; or
  • In the room where a qualifying individual underwent an aerosol-generating procedure, prior to the termination of the clearing time.

Do healthcare facility 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 within 24 hours.
  • Temporary help service, employee-leasing service, or personnel supply service employers of a covered employee

What does the written notice have to state?

The notice must state that the employee has had a known or suspected high risk exposure to COVID-19. If feasible, it must include information about the worksite location where the exposures are believed to occur

How are healthcare facility 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 24 hours after sending by the employee, union representative, or temporary help service, employee-leasing service, or personnel supply service employer.

Written notification must be in both English and the language understood by the majority of the employees. This also applies to written notices provided to union representatives. Please see WAC 296-606 for additional information.

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

No. Under the rule, written notices must not include any employee names or personal identifying information. For example: employers that send notices by email must use methods that avoid inadvertent disclosure names or personal information. Sending email using their system’s blind carbon copy function (bcc) or by sending individual emails to each employee (email contains a single recipient and no other individuals sees the email) would meet that requirement.

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.

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 two (2) days before the positive test specimen collection.
  • The period of transmission ends the latest of:
    • At least 24 hours after the last fever without the use of fever-reducing medications and symptoms have improved. Examples of symptoms include cough and shortness of breath.
    • Or for asymptomatic individual, the first full day after the collection of a positive test specimen.
    • Or the length of the qualifying individual's isolation period, when the qualifying individual has an isolation period longer than 10 days for reasons such as illness severity, or due to immunocompromised. In such circumstances, the isolation period is not shorter than, but may be longer than, at least 24 hours beyond the last fever without use of fever-reducing medications, and symptoms like cough, shortness of breath have improved.

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.

See United States Centers for Disease Control and Prevention's Guidelines for Environmental Infection Control in Health-Care Facilities (2003), Appendix Table B.1, Air changes/hour (ACH) and time required for airborne-contaminant removal by efficiency. 

This is no more than three hours following the conclusion of an aerosol generating 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).

Complaints

How do I complain if I believe employees are not receiving the notifications at the time and in the manner required by WAC 296-62-605 and WAC 296-62-606?

You can call DOSH at 1-800-4BE-SAFE (or 1-800-423-7233). Or you can fill out a DOSH complaint form

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.

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

Employers must allow an 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.
  • Does not conflict with the related rules for PPE for that specific type of equipment established by the Department of Labor and Industries (L&I) division of Occupational Safety and Health (DOSH).
  • Of face coverings will not interfere with the employer’s security requirements;

Note: An employer may verify that voluntary use of personal protective equipment meets all regulatory requirements for workplace health and safety.

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