What Does the New Colorado COVID-19 Vaccine Mandate Mean for Health Care Facilities?

Brownstein Hyatt Farber Schreck

Thousands of Colorado’s licensed health care facilities are now required to ensure that certain workers are vaccinated against COVID-19 by the end of October. The new mandate came in response to an Aug. 17 letter from Gov. Jared Polis, the Food and Drug Administration’s (FDA) approval of the Pfizer COVID-19 vaccine and movement at the federal level to require full vaccination among health care workers. Specifically, the Colorado Board of Health (the “Board”) voted Monday, Aug. 31, to approve emergency rules requiring licensed health care facilities to mandate COVID-19 vaccinations for certain personnel (emergency rules available here). What entities are covered, and what must they do to comply?

Covered Entities: The vaccine mandate applies to health care facilities licensed by the Colorado Department of Public Health and Environment (“CDPHE”), including hospitals, ambulatory surgical centers, dialysis treatment clinics, freestanding emergency departments, assisted living residences, nursing homes, hospices and home care agencies. According to CDPHE, approximately 30% of the health care workforce in these licensed facilities remain unvaccinated. With the rise in the Delta variant, the Board explained that requiring all workers in licensed facilities to be vaccinated is one of the most effective means of ensuring the public health, safety and welfare of all Coloradans and ending the ongoing pandemic.

Notably, the emergency rules only apply to licensed facilities under the Board’s jurisdiction; they do not apply to unlicensed clinical settings where patients might seek medical care, such as physician offices and urgent care centers. Hence, these new emergency rules are narrower in scope than the Aug. 2, 2021, Denver Public Health & Environment Order (“Denver Order”), which applies more widely to a variety of high risk settings, including doctor’s offices, shelters, correctional facilities, schools, childcare centers and first responders. 

Covered Personnel: Covered personnel include employees, direct contractors and support staff who interact with patients or have exposure to infectious materials. As discussed below, the emergency rules allow for certain medical and religious exemptions. Licensed facilities have some leeway in determining how they will comply with the rules by designating which personnel categories or positions are subject to the vaccine mandate. These determinations should be in writing and should include justification as to the licensed facility’s reasoning.

What Policies and Procedures Must Licensed Facilities Implement to Comply?

Vaccine Mandates and Timing: The Colorado emergency rules require that each licensed facility develop and implement policies and procedures to ensure that 100% of employees, direct contractors, and support staff—subject to medical or religious exemptions—who have the potential for exposure to patients and/or infectious materials be vaccinated in accordance with the following timeline:

  • Obtain the first dose of a two-dose COVID-19 vaccine no later than September 30, 2021;
  • Obtain the second dose (if applicable) no later than October 31, 2021; and
  • Obtain any recommended subsequent/booster dose in accordance with recommended timelines.

Moreover, individuals hired or engaged after Oct. 31, 2021 must obtain full COVID-19 vaccination status prior to beginning work at the licensed facility. The policies and procedures also must address the manner in which the licensed facility will maintain proof of immunization.

Permissible Exemptions: The Colorado emergency rules contemplate exemptions for medical conditions, disabilities and sincerely held religious beliefs in accordance with federal, state and local civil rights laws. (For a more detailed discussion of these and other considerations related to mandatory vaccine policies, you may review our previous article on the FDA’s approval of the Pfizer vaccine and employer mandates here.) The emergency rules also contemplated that individuals who have received certain treatments for COVID-19 that may be required to postpone obtaining the vaccine will be required to obtain it in accordance with the timeframe recommended by the Centers for Disease Control and Prevention (CDC) and their health care provider. The policies required under the emergency rules must set forth specific criteria for medical and religious exemptions and the manner in which documentation supporting such exemptions will be maintained. In addition, the policies must describe other measures the licensed facility will take to protect patients and the public from exposure by unvaccinated individuals, which must include, at a minimum, how the licensed facility will implement testing and masking for unvaccinated individuals.

Reporting Requirements: Beginning on Oct. 1, 2021 and continuing on the first and 15th of every month, licensed facilities are required to report specific data points to the CDPHE, including their COVID-19 vaccination rate, the number of medical or religious exemptions claimed by personnel and the number of personnel who have terminated their employment or engagement due to the vaccine mandate requirements. Licensed facilities should be on the lookout for further guidance from CDPHE on the mechanics of this reporting requirement.

Reported information will be made publicly available on CDPHE’s website, and the data will be used by the department to track vaccination trends and identify licensed facilities that need technical assistance complying with the rules. CDPHE has stated that it anticipates that it will modify these reporting requirements after conducting further stakeholder engagement.

Consider Privacy and Data Security Laws: Because of the nature of the information required to be maintained, licensed facilities should take into consideration federal and state-level data and privacy security laws that will impact what information is gathered, how it is stored and for how long, among other things. (For a more detailed discussion of these issues, please refer to our prior client alert.)

Takeaways: Licensed facilities will need to walk a tightrope to comply with the Colorado state-wide vaccine mandate while balancing employee civil rights and privacy considerations. Moreover, licensed facilities in Denver will need to evaluate the interplay between the emergency rules and the Denver Order. Licensed facilities should work closely with legal counsel in developing their strategy for compliance, with reference to applicable civil rights, privacy and other laws.

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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