As healthcare facilities work to treat the onslaught of COVID-19 patients precipitated by the Omicron variant, the California Department of Public Health (CDPH) has issued an amended Order requiring workers in healthcare settings to receive a COVID-19 booster shot based on the type of vaccination they received. At the same time, the CDPH has advised that healthcare workers who are infected or who have been exposed to COVID-19 may return to work immediately if they are asymptomatic.

Mandatory Vaccinations Include Booster Shots

The CDPH has amended its mandatory vaccination requirement for workers in healthcare settings to account for booster shots, as follows:

• If a healthcare worker became eligible¹ for a booster on or before January 17, 2022, they must receive their booster shot by February 1, 2022.
• If a healthcare worker becomes eligible on or after January 18, 2022, they must receive their booster within 15 days of become eligible.

During the time between eligibility and getting the booster, the healthcare worker must test for COVID-19 twice a week and wear a surgical mask or higher-level respirator approved by the National Institute of Occupational Safety and Health (NIOSH), such as an N95 filtering facepiece respirator, at all times while in the healthcare facility.

Workers may still apply for an exemption from any of the vaccination requirements based on their religious beliefs, or due to qualifying medical reasons. To comply with the Order, healthcare facilities should include the new booster requirements in their existing mandatory vaccination policies.

Return-to-Work Guidance Following COVID-19 Infection from January 8, 2022 to February 1, 2022

From January 8, 2022 until February 1, 2022, any healthcare worker who tests positive for COVID-19 or was exposed to COVID-19 but is asymptomatic may return to work immediately without isolation or quarantine and without testing, if certain pre-conditions are satisfied: first, the affected staff must wear an N95 respirator; second, healthcare employers must make every attempt to bring in additional registry or contract staff and must have considered modifications to non-essential procedures. Specifically, CDPH advises employers to plan for staffing shortages by:

• Adjusting staff schedules;
• Hiring additional workers;
• Rotating staff to positions that support patient care activities;
• Identifying roles that can be cross-covered by those not specifically assigned to a role; and
• Developing regional plans to identify designated healthcare facilities or alternate care sites with adequate staffing to care for patients with SARS-CoV-2 infections.

Finally, as much as possible, healthcare workers who have tested positive should be assigned to work with COVID 19 positive patients when possible.

Takeaways for Healthcare Employers

For employers to take advantage of these new return-to-work guidelines, they should keep records of their attempts to hire additional registry or contract staff and any cancellations or delays made to scheduled non-essential procedures before allowing asymptomatic employees to return immediately.

Additionally, employers should create a plan and keep records of any adjustments to staff schedules, attempts at hiring additional staff, rotating staff to different positions, and identifying roles that can be cross-trained to care for the COVID-19 patient population.

Other Considerations

In addition to the California State Order, healthcare employers should be aware that local jurisdictions have authority to implement additional rules governing vaccines, boosters, and testing. For example:

• On January 11, 2022, the Los Angeles County Health Officer issued an order requiring all individuals who test positive for COVID-19, regardless of vaccination status, to self-isolate until at least five days after their symptoms appeared, they are free of a fever, and they have received a negative COVID-19 test (an antigen, nucleic acid amplification or LAMP test are acceptable, but antigen tests are preferred); or, to self-isolate for at least ten days and be free of a fever.
• In Sonoma County, the Department of Public Health issued an order requiring all employers of fire, law enforcement, emergency medical service workers, pharmacies, dental offices, and operators of temporary disaster shelters to require personnel to get tested at least twice weekly for COVID-19 or produce satisfactory evidence that they have received a booster for COVID-19.

Experienced DWT attorneys are available to assist with formulating or implementing a policy or complying with any of the federal, state, or local requirements.

FOOTNOTE

1 Persons who received the Johnson and Johnson [J&J]/Janssen vaccine are eligible for a booster after the vaccine regime; all others are eligible within 6 months of their vaccine regime.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

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