On August 5, 2021, the California Department of Public Health implemented an updated mandatory vaccination requirement for healthcare workers. The order is effective immediately and healthcare employers must achieve full compliance by September 30, 2021. Healthcare workers will no longer be able to subscribe to weekly testing to avoid vaccination as was allowed under the prior July 26, 2021 Order and will only be exempt from the requirement for religious reasons or due to a qualifying medical reason.

Who is Subject to the Order?

The August 5, 2021 Order applies to a broad range of healthcare employers: (1) General Acute Care Hospitals, (2) Skilled Nursing Facilities, (3) Intermediate Care Facilities, (4) Acute Psychiatric Hospitals; (5) Adult Day Health Care Centers; (6) Program of All-Inclusive Care for the Elderly (PACE) and PACE Centers, (7) Ambulatory Surgery Centers; (8) Chemical Dependency Recovery Hospitals, (9) Clinics & Doctor Offices (including behavioral health, surgical), (10) Congregate Living Health Facilities, (11) Dialysis Centers, (12) Hospice Facilities, (13) Pediatric Day Health and Respite Care Facilities, and (14) Residential Substance Use Treatment and Mental Health Treatment Facilities

All workers at these facilities are subject to the mandatory vaccination requirement.  The term "workers" is defined broadly and includes not only employees, but all paid and unpaid individuals who work in indoor settings where (1) care is provided to patients, or (2) patients have access for any purpose . . . including contractual staff not employed by the health care facility.

What is Required?

All workers at the above mentioned facilities must have their first dose of a one-dose regimen or their second dose of a two-dose regimen by September 30, 2021. Two-dose vaccines include: Pfizer-BioNTech or Moderna or a vaccine authorized by the World Health Organization. The one-dose vaccine is: Johnson and Johnson [J&J]/Janssen.

Are Exemptions Available?

Exemptions to this requirement are only available for workers who submit a written and signed declination stating that they either (1) are declining to be vaccinated for a religious reason, or (2) they cannot receive the vaccine due to a qualifying medical reason.  Qualifying medical reasons must be supported by a written statement signed by a physician, nurse practitioner, or other licensed medical professional practicing under the license of a physician stating that the individual qualifies for the exemption (but the statement should not describe the underlying medical condition or disability) and indicating the probable duration of the worker’s inability to receive the vaccine (or if the duration is unknown or permanent).  While not discussed in the order, healthcare employers should be prepared to address declinations for religious reasons in the same manner as they would a request for a religious accommodation in the workplace.   These requests are very nuanced and factually specific so we recommend reaching out to your legal counsel if you are faced with this situation.

If a worker meets one of the two exemptions above they must still (1) be tested weekly with either a PCR or antigen test (testing must occur twice weekly for unvaccinated exempt workers in acute health care and long-term care settings); and (2) wear a surgical or N95 mask at all times while in the healthcare facility.

While not discussed in the order, current guidelines require employers to cover the costs of testing provided to employees, including the time spent getting tested.  So healthcare employers should be prepared to cover testing costs for employees meeting one of the two exemptions above. 

What Records Must Be Retained?

Healthcare employers must keep a record of all workers’ vaccination or exemption status as well as all testing results of workers who meet the two exemptions above. Records of vaccination status must contain (1) the worker’s full name and date of birth; (2) vaccine manufacturer; and (3) date of vaccine administration

Healthcare employers may need to provide these records to a local or state public health officer upon request so it is imperative they are retained and easily accessible.

The August 5th Order does not otherwise limit any requirements related to personal protective equipment, training, or infection control.  So even if vaccinated, workers will still need to comply with the current requirements for PPE while in a healthcare facility.

Additionally, the Order encourages facilities to provide onsite vaccinations or easy access to nearby vaccinations.  While not specified what “easy access” means it could include a shuttle or other transportation to a vaccine site.  Additionally, healthcare employers are encouraged to provide education and outreach on vaccinations including access to epidemiologists, physicians, or other counselors who can answer questions about the vaccine and also provide access to online resources providing up to date information about the vaccine.

Stradling Has Resources To Help You Stay Compliant

To assist California employers in complying with the various COVID-19 requirements in California, Stradling has created COVID-19 protocols which incorporate all the new requirements and clarifications of the ETS and help businesses comply with federal, state, and county requirements. We encourage you to reach out if you are in the process of reopening or you have been conducting business and want to make sure you are in compliance with the applicable industry guidelines.

Please do not hesitate to reach out to us for assistance in dealing with the effects of the COVID-19 pandemic on your company.