California’s Mandate: Give Me Vaccinations, Or Give Me Tests!

Seyfarth Shaw LLP

Seyfarth Synopsis: On July 26, 2021, Governor Newsom, announced that California state workers and workers in “health care” and “high-risk congregate settings” will be mandated to either show proof of being fully vaccinated, or be tested for COVID-19 at least weekly. The mandate also encourages all local governments and other employers to adopt a similar protocol. The California Department of Public Health posted the details of the Order on July 27, 2021.

On July 26, 2021, Governor Newsom issued a press release, noting that California will begin requiring state employees and workers (including employees, contractors, and volunteers) in “health care and high-risk congregate settings” to either show proof of being fully vaccinated or get tested for COVID-19 at least weekly. The Governor is promoting these mandates as an effort to encourage state and healthcare workers to get vaccinated.

The Same Subject In Different Lights

The CDPH detailed in its new posted Order that the mandate will apply to the following types of facilities:

  1. Acute Health Care and Long-Term Care Settings: Testing required at least twice per week for anyone not fully vaccinated.
    • General Acute Care Hospitals
    • Skilled Nursing Facilities (including Subacute Facilities)
    • Intermediate Care Facilities
  2. High-Risk Congregate Settings: Testing required at least one per week for anyone not fully vaccinated.
    • Adult and Senior Care Facilities
    • Homeless Shelters
    • State and Local Correctional Facilities and Detention Centers
  3. Other Health Care Settings: Testing required at least one per week for anyone not fully vaccinated.
    • Acute Psychiatric Hospitals
    • Adult Day Health Care Centers
    • Adult Day Programs Licensed by the California Department of Social Services
    • 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
    • Dental Offices
    • Dialysis Centers
    • Hospice Facilities
    • Pediatric Day Health and Respite Care Facilities
    • Residential Substance Use Treatment and Mental Health Treatment Facilities

Note: The Order explicitly states that those with medical contraindications to receiving the vaccine, and those who recovered from COVID-19 in the prior 90 days are not exempt from the testing requirements.

No Time For Ceremony

The requirement will take effect on August 2 for state workers, and on August 9 for health care workers and congregate facilities. As testing is phased in, facilities will have until August 23, 2021, to come into full compliance.

Also, even for those workplaces already following the Cal/OSHA Emergency Temporary Standard on COVID-19 (ETS), the mandate will require that employees “show proof” of vaccination to their employer, as opposed to simply attesting to vaccination status as allowed by the ETS. If an employee does not show proof of being fully vaccinated, they must be considered unvaccinated. The Order allows for “proof” to be in the form of:

  • presenting a vaccination record or card, or a photo of it which includes name of person vaccinated, type of vaccine provided and date last dose administered;
  • a digital record that includes a QR code that when scanned by a SMART Health Card reader reveals client name, date of birth, vaccine dates and vaccine type, and confirms it’s an official record of the state of CA; or
  • documentation of vaccination from other contracted employers who follow the same vaccination records guidelines and standards.

So, covered workplaces may need to go back to employees who previously provided only their attestations of vaccination status, and seek documentary proof of vaccination status.

Records of vaccination verification must be made available, upon request, to the local health jurisdiction for purposes of case investigation.

To Preserve Inviolate Those Inestimable Privileges

Employers should also remember that they need to continue to follow CDPH masking guidance. And to the extent they are already applicable, covered facilities must also continue to adhere to Cal/OSHA’s standards for Aerosol Transmissible Diseases (ATD), which requires respirator use in areas where suspected and confirmed COVID-19 cases may be present, and the ETS that requires all unvaccinated workers be provided a respirator, at no cost, upon request.

The Order also requires that acute health care and long-term care settings must provide respirators to all unvaccinated or incompletely vaccinated workers who work in indoor work settings where (1) care is provided to patients or residents, or (2) to which patients or residents have access for any purpose. Like workplaces covered by the ETS, these facilities must provide the respirators at no cost, and workers must be instructed how to properly wear the respirator and how to perform a seal check according to the manufacturer’s instructions.

Workplace Solutions

In light of the mandate, covered employers must rapidly adjust their COVID-19 testing and verification procedures, and they may need to reevaluate their current COVID-19 policies and procedures if covered by the Cal/OSHA ETS.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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