As businesses reopen across the state, many are struggling to comply with what industry advocates argue are inconsistent and ambiguous safety guidelines issued by the state that could result in stiff fines if operations are found to be out of compliance.
While the Building Industry of Washington (BIAW) has filed a lawsuit against a new rule by the state Department of Labor and Industries on the grounds that it violates state law, BIAW members and other employers are still seeking clarity regarding the guidelines to reopen.
The state law authorizing the governor to declare a state of emergency also permits him to enforce violations as a misdemeanor that is punishable by a $5,000 fine and 364 days in jail. However, L&I claims its emergency rule adopted in May permits the agency to impose a $10,000 fine. BIAW General Counsel Jackson Maynard says the state agency lacks the statutory authority to enforce the governor’s order, adding that “while we agree that COVID-19 is an emergency, we don’t see anything that’s occurring in the industry right now that indicates a criminal penalty and a $5,000 is not a sufficient deterrent to require compliance.”
The fine can apply to seemingly minor health requirements, such as the temperature of water at a handwashing station. Under the guidelines, the water is supposed to be “tepid” and builders potentially face a citation if the inspector decides it is the wrong temperature. And while it may sound like a small issue, Maynard said some builders have had inspectors demand they address it.
“The idea they could get a $10,000 fine is another example of how arbitrary and capricious the application of some of these laws can be,” Maynard said. “Unless the business is going to stand out there with a thermometer…it would be somewhat difficult to control.”
Compounding the questionable legality of the $10,000 fine is interpreting the guidelines put out by several state agencies such as L&I and the state Department of Health – in addition to Governor Jay Inslee’s office – that don’t always match. In some cases, the same questions are getting different answers from within the agency – depending on who is asked.
One official from Inslee’s office told a Spokane builder in an April 9 email that nearly completed residential construction was considered essential activity. Yet an April 17 letter from Inslee’s General Counsel Kathryn Leathers to Chelan County Commissioners threatened legal action in response to a county resolution stating that “pre-existing home sales may proceed to build completion.” The resolution has since been rescinded.
Maynard said that “the ambiguity in some aspects of the governor’s orders and requirements make compliance difficult in some circumstances and makes the penalty of $10,000 particularly inappropriate.”
The inconsistencies have been a problem for retailers as well. Washington Retail Association (WRA) Senior Vice President of Policy and Government Affairs Mark Johnson told Lens that although L&I says it won’t cite a business unless it finds “wanton and willful disregard” for safety rules, “it’s a judgment call on the inspector’s part. They can cite them on the spot if they want to.”
To avoid that, the association has repeatedly sought clarification regarding certain rules such as the use of face masks. WRA Vice President of Operations Rose Gundersen told Lens that “even local health departments and L&I are not really consistent in their standards, which causes confusion.”
“The problem is, my members call me up every day and say: ‘I’m looking at the Department of Health and L&I guidance, and they’re all different,’” Johnson said.
The agency that gets “final say” also varies. With guidelines for face masks, Johnson said Inslee’s office deferred to L&I’s more restrictive policy. However, Gundersen said she got the opposite response when she contacted L&I about its guidelines for hair salons. Under those guidelines, both employees and customers must wear masks and gowns, but employees must change them for each customer.
“This requirement would justify requiring restaurant waiter/waitresses changing their uniform or gown every time they have a new customer,” Gundersen wrote in a June 2 email to L&I.
Eventually, L&I officials pointed Gundersen to Inslee’s workplace safety guidance. She told Lens: “why is that waiters do not have to change their clothing for every customer when they actually have people open their mouths and talk? If I had to close my business because of this limitation, I’d like to at least know why.”
The BIAW lawsuit against L&I is scheduled for a hearing on June 19 in Thurston County Superior Court.