On August 5, 2021, the California Department of Public Health (“CDPH”) issued a Health Officer Order (“HOO”) requiring all health care workers in California to be vaccinated by September 30, 2021. This new HOO comes on the heels of the CDPH’s Order from July 26th, requiring health care and high-risk congregate settings to verify the vaccination status of all workers and test unvaccinated workers for COVID-19 weekly. The new HOO represents the first State ordered vaccination mandate for health care workers.
Vaccination Mandate. All covered workers must receive either their first dose of a one-dose COVID-19 regimen (i.e., Johnson & Johnson) or their second dose of a two-dose regimen (i.e., Pfizer-BioNTech or Moderna) by September 30, 2021. A worker who has only received one dose of a two-dose regimen does not comply with the mandate.
Covered Workplaces. The HOO applies to “Health Care Facilities,” defined as:
- 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; and
- Residential Substance Use Treatment and Mental Health Treatment Facilities.
Covered Workers. The mandate applies to all paid and unpaid individuals who work indoors in “Health Care Facilities” (as defined above) where care is provided to patients or patients have access to for any purpose. This includes workers serving in Health Care Facilities who have the potential for direct or indirect exposure to patients or COVID-19 airborne aerosols.
The HOO provides examples of workers covered by the mandate:
- Nursing assistants;
- 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).
Exemptions. Workers may be exempt from the vaccination mandate if they have a qualifying medical reason or sincere religious belief. A worker seeking an exemption must provide the operator of the facility with a signed declination form stating that they are declining vaccination based on qualifying medical reasons or religious beliefs. If a worker declines based on a qualifying medical reason, they must provide their employer with a written statement signed by a licensed medical professional stating that the worker qualifies for the exemption and indicating the probable duration of the worker’s inability to receive the vaccination.
Exempt workers must be regularly tested for COVID-19 and wear a surgical mask or respirator at all times while in the facility. Workers in acute health care and long-term care settings must be tested twice weekly and workers in other health care settings once weekly.
Recordkeeping. Facility operators must maintain records of workers’ vaccination or exemption status in compliance with applicable privacy laws (e.g., as a confidential medical record and kept separate from the worker’s personnel file). Vaccination records must be maintained pursuant to the CDPH Guidance for Vaccine Records Guidelines & Standards with the following information: (1) full name and date of birth; (2) vaccine manufacturer; and (3) date of vaccine administration.
Facility operators must also maintain records of COVID-19 testing results and the signed declination forms with the written health care provider’s statement for exempt workers.
We will continue to monitor major COVID-19 related developments that impact the workplace. If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at 818-508-3700 or visit us online at www.brgslaw.com.
Richard S. Rosenberg
Katherine A. Hren
Charles H.W. Foster
Ballard Rosenberg Golper & Savitt, LLP