On August 5, the California Department of Public Health issued a Health Order (“the Order), effective that same day, requiring COVID-19 vaccinations for all healthcare workers, with very narrow exceptions. The Order requires that covered workers be fully vaccinated by September 30, 2021.
Due to the State experiencing the fastest increase in COVID-19 cases during the entire pandemic with 18.3 new cases per 100,000 people per day, unvaccinated individuals being the presumed majority spreaders of the disease, and the Delta variant becoming the most common variant causing new infections in California, additional statewide measures were deemed necessary to protect particularly vulnerable populations, and ensure an adequate supply of workers in high-risk health care settings.
This Order overrides Governor Newsom’s previous order for state workers, healthcare workers, and other employees in “high-risk congregate settings” to get vaccinated or submit to weekly testing and mask-wearing. In other words, healthcare workers no longer have the option to get vaccinated or submit to weekly testing. Unless covered by one of the limited exceptions to the new order, healthcare workers are required to be fully vaccinated.
Who Does This Affect?
The Order broadly applies to all workers, paid and unpaid, who work in any indoor setting where (1) care is provided to patients, or (2) patients have access for any purpose, including workers who provide services or work in the Health Care Facilities described below.
The Order applies to “Health Care Facilities,” defined as any of the following:
- General Acute Care Hospitals
- Skilled Nursing Facilities (including Subacute Facilities)
- Intermediate Care Facilities
- Acute Psychiatric Hospitals
- Adult Day Health Care Centers
- Program of All-Inclusive Care for the Elderly (PACE) and PACE Centers
- Ambulatory Surgery Centers
- Chemical Dependency Recovery Hospitals
- Clinics & Doctor Offices (including behavioral health, surgical)
- Congregate Living Health Facilities
- Dialysis Centers
- Hospice Facilities
- Pediatric Day Health and Respite Care Facilities
- Residential Substance Use Treatment and Mental Health Treatment Facilities
The Order specifically defines “workers” to include, but are not limited to, nurses, nursing assistants, physicians, technicians, therapists, phlebotomists, pharmacists, students and trainees, contractual staff not employed by the health care facility, and persons not directly involved in patient care, but who could be exposed to infectious agents that can be transmitted in the health care setting (e.g., clerical, dietary, environmental services, laundry, security, engineering and facilities management, administrative, billing, and volunteer personnel).
Workers may be exempt from this requirement only upon providing the health care facility with a signed declination form from a physician, nurse practitioner, or “other licensed medical professional practicing under the license of a physician,” stating (1) the worker is declining vaccination based on religious beliefs, or (2) the worker is excused from receiving the vaccine for a qualifying medical reason.
The statement should not disclose the underlying medical condition, but should indicate the probable duration of the worker’s inability to receive the vaccine (or if the duration is unknown or permanent, so indicate). Before a health care facility inquires into an employee’s claimed medical reason or “religious belief” underlying the declination, counsel should be consulted.
Individuals who are exempt from the vaccine requirements due to religious beliefs or a qualified medical reason must:
- Test for COVID-19 twice weekly if they work in an acute health care or long-term care setting and once weekly in all other settings; and
- Wear a surgical mask or higher-level respirator, such as an N95 mask, at all times while in the facility.
What Employers Need to Know
Applicable healthcare facilities must maintain records of:
- Vaccination (name, date, vaccine type and date of administration); and if applicable,
- Exemption status, copies of unvaccinated worker declination forms, and regular testing records.
Any vaccination and testing information should be treated as a confidential medical record under the ADA and should be stored separately from the employee’s personnel file.
Notably, the order does not identify specific penalties for failure to comply with the order.
We will continue to keep you informed with any updates.