UPDATED Friday, August 6, 2021
In response to evidence that the majority of COVID-19 infections and outbreaks were among unvaccinated people, and because the current requirements of masking health care employees is proving insufficient to prevent transmission of the highly virulent Delta variant, the California Department of Public Health ("CDPH") has issued two new Orders regarding health care worker vaccinations.
The initial order, issued July 26, 2021 required all state workers and workers in health care and high-risk congregate settings to either show proof of full vaccination or be tested up to twice weekly. That order takes effect on August 9, 2021 and all covered facilities must be in full compliance no later than August 23, 2021.
The most recent order, issued on August 5, 2021, mandates that all workers who work in certain health care facilities, where indoor care is provided to patients or patients have access to the building, become fully vaccinated by September 30, 2021.
Facilities Covered Under the July 26, 2021 Order
Since certain acute and health care facilities are now subject to the August 5 vaccine mandate order, they are not listed here.
- Adult and Senior Care Facilities
- Homeless Shelters
- State and Local Correctional Facilities and Detention Centers
- Adult Day Programs Licensed by the California Department of Social Service
- Dental Offices
The order can be found here: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Order-of-the-State-Public-Health-Officer-Unvaccinated-Workers-In-High-Risk-Settings.aspx
However, during the period between when this Order takes effect, August 23, and the date by which workers must be vaccinated pursuant to the August 5 Order, September 30, 2021, all covered facilities must require testing as outlined below.
Facilities and Workers Covered Under the August 5, 2021 Vaccine Mandate Order
Workers who perform indoor work at the following facilities, which are covered by this order include, but are not limited to, nurses, nursing assistants, physicians, technicians, therapists, phlebotomists, pharmacists, 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).
Acute
- General Acute Care Hospitals
- Skilled Nursing Facilities (including Subacute Facilities)
- Intermediate Care Facilities
Other Health Care Centers
- 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 and surgical)
- Congregate Living Health Facilities
- Dialysis Centers
- Hospice Facilities
- Pediatric Day Health and Respite Care Facilities
- Residential Substance Use Treatment and Mental Health Treatment Facilities
The order can be found here: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Order-of-the-State-Public-Health-Officer-Health-Care-Worker-Vaccine-Requirement.aspx
Verification of Employee Vaccination
Both Orders require proof of vaccination and facilities must have a plan for tracking verified worker vaccination status. Thus, a verbal attestation that a worker has been vaccinated is insufficient.
Only the following modes may be used as proof of vaccination:
1. COVID-19 Vaccination Record Card (issued by the Department of Health and Human Services, Centers for Disease Control & Prevention or WHO Yellow Card) which includes name of person vaccinated, type of vaccine provided and date last dose administered); OR
2. A photo of a Vaccination Record Card as a separate document; OR
3. A photo of the worker’s Vaccination Record Card stored on a phone or electronic device; OR
4. Documentation of COVID-19 vaccination from a health care provider; OR
5. Digital record that includes a QR code that when scanned by a SMART Health Card reader displays to the reader employee name, date of birth, vaccine dates and vaccine type. The QR code must also confirm the vaccine record as an official record of the state of California; OR
6. Documentation of vaccination from other contracted employers who follow these vaccination records guidelines and standards.
Workers who are not fully vaccinated, or for whom vaccine status is unknown or documentation is not provided, must be considered unvaccinated. Records of vaccination verification must be made available, upon request, to the local health jurisdiction for purposes of case investigation. Thus, we recommend that employers keep accurate records for each employee and ensure those records are kept in a confidential medical file to comply with the requirements of the Americans with Disabilities Act (“ADA”).
Employee Testing under the July 26, 2021 Order
Testing requirements for those facilities covered under the July 26 Order are rigid in order to encourage employees to vaccinate. Asymptomatic unvaccinated or incompletely vaccinated workers must undergo diagnostic screening testing, though they may choose antigen or molecular tests.
- Acute Health Care and Long-Term Care Setting employees must be tested at least twice weekly.
- High-Risk Congregate Settings and Other Health Care Setting employees must be tested at least once weekly.
Employees must continue to wear masks and importantly, even those employees who have a medical exemption from vaccination must test as required by the order. Even those employees who have recovered from COVID-19 or have a positive antibody test must undergo required testing.
Facilities must have a plan to track test results, conduct contact tracing and report results to local health departments.
Exemptions for Workers under the August 5, 2021 Vaccine Mandate Order
Workers may request exemption from the vaccination requirements by submitting a written declination form that they decline or are excused from vaccination based on (1) sincerely held Religious Beliefs, or (2) Qualifying Medical Reasons.
The Order specifies that to be eligible for a Qualified Medical Reasons exemption the worker must also provide 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, so indicate).
The Order does not specify the requirements for establishing a religious exemption. We recommend you consult with legal counsel before imposing certain requirements, but in general, we support requesting from the worker a signed statement, on official letterhead, from the worker’s faith’s priest, minister, chaplain, rabbi or other official that explains the specific faith-based teachings that oppose immunizations.
Testing for Vaccine Exempt Workers
For those workers with an approved exemption:
- Acute health care and long-term care settings – test twice weekly
- Other health care settings – test once weekly
Workers must also wear a surgical mask or higher-level respirator approved by the National Institute of Occupational Safety and Health ("NIOSH"), such as an N95 filtering face piece respirator, at all times while in the facility.
Paying for Employee Testing
Although the Orders do not address whether employees should be paid for time spent receiving vaccinations and undergoing testing, since testing is considered a requirement of employment, employers should ensure employees undergo testing during paid work hours or pay employees for the time it takes to test if outside of work hours. If an employee must test outside of work hours, employers should ensure overtime is paid if applicable. Employers should also plan to compensate employees for mileage incurred driving to off-site testing facilities. While some employee health insurance plans cover individual testing, it is unlikely such plans will cover weekly testing as required by these Orders. Employers covered under these Orders should be prepared to pay for the cost of required testing.
Through September 30, 2021, California’s COVID-19 Supplemental Paid Sick Leave ("SPSL") is still available to employees for COVID-19 related absences including hours spent getting the vaccine and for time off work due to symptoms/side effects of the vaccine. There is no indication in the Orders that employers could not deduct from an employee’s available SPSL hours if an employee is getting vaccinated in response to this Order.
Respirator or Mask Requirements
All covered facilities must continue with CHPH and Cal/OSHA guidance regarding providing respirators for unvaccinated workers upon request.
For employees at Acute Health Care and Long-Term Care facilities, 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” must be provided with respirators at no cost to the workers. Workers must also receive instruction on how to properly wear the respirator and how to check the seal of the respirator. For High-Risk Congregate Settings and Other Health Care Settings, all unvaccinated or incompletely vaccinated workers must be provided U.S. Food and Drug Administration-cleared surgical masks that must be worn in indoor settings when workers are working with another person.
Responding to Challenges to the Order
Employers can expect some pushback from employees when implementing these Orders. Numerous protests have already been staged. Although the July 26 Order does not provide for exemptions, employers may consider reasonable accommodations for employees who object to regular testing on medical grounds, which may include a leave of absence from work. We recommend employers consult with trusted legal counsel before responding to employee requests for exemption. Although the Orders do not specify the enforcement mechanism or penalties for non-compliance, later guidance may specify fines or action taken against facility licenses.