On December 22, 2021, the California Department of Public Health (“CDPH”) issued an order requiring workers in health care facilities to receive booster vaccinations to help combat COVID-19. Health care workers must receive the booster vaccine by February 1, 2022.
The order uses the same definition for “Health Care Facilities” as the August 5, 2021 order that required health care workers to receive an initial COVID-19 vaccination. “Health Care Facilities” include: General Acute Care Hospitals, Skilled Nursing Facilities (including Subacute Facilities), Intermediate Care Facilities, 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, surgical), Congregate Living Health Facilities, Dialysis Centers, Hospice Facilities, Pediatric Day Health and Respite Care Facilities, and Residential Substance Use Treatment and Mental Health Treatment Facilities. “Workers” covered by the order include not only workers directly involved in patient care, but also workers in ancillary positions that could be exposed to COVID-19 such as clerical, security, administrative, and volunteer personnel.
The order provides a recommended timetable for health care workers to receive their booster vaccination. The CDPH recommends workers who initially received the Moderna or Pfizer vaccine to receive the booster six months after their second dose. Workers who initially received the Johnson & Johnson vaccine are recommended to receive the booster two months after their initial dose. The February 1, 2022 deadline is extended for workers if their recommended booster date falls after February 1. Those workers must receive the booster within 15 days after their recommended booster date.
The order maintains exemptions for workers that do not receive a booster because of religious beliefs or a qualifying medical reason. Workers claiming an exemption for a medical reason must submit a note from a licensed medical professional to their employer. The note must state that the worker applies for the exemption and the estimated duration of the inability to receive the vaccine. Workers claiming an exemption must sign a declination form that must be stored and maintained by the health care facility.
Workers who do not receive the booster are required to undergo a COVID-19 test twice weekly for workers in acute health care and long-term care settings and once weekly for workers in other health care settings. Health care facilities must administer tests for non-boosted workers by December 27, 2021. Workers who are not boosted are also required to wear a mask approved by the National Institute of Occupational Safety and Health while in the facility.
Health care facilities are required to maintain records of their workers’ vaccination status, including the worker’s name, date of birth, booster manufacturer, and date of administration of the booster. Heath care facilities must also maintain records of the results of the COVID-19 tests they administer to workers who are not fully vaccinated or boosted.
The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation. This article is not intended to be an unequivocal, one-size-fits-all guidance, but instead represents our interpretation of where applicable law currently and generally stands. This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.