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California Requires Vaccines for Most Healthcare Workers in Healthcare Facilities

On August 5, 2021, the California Department of Public Health (CDPH) issued a new Order that impacts healthcare employers in California. The CDPH’s Order mandates that almost all healthcare employers require their healthcare workers (and any worker that may be exposed to COVID-19) to be fully vaccinated unless a worker qualifies for a religious or medical exemption. This Order does not invalidate the July 26, 2021, Public Health Order, which remains in effect.

IN DEPTH


WHAT HEALTHCARE FACILITIES DOES THIS ORDER APPLY TO?

The Order applies to each of the following facilities:

  • 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 and 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

WHAT WORKERS DOES THIS APPLY TO?

The Order applies to all workers who provide services or work in the facilities listed above. In the Order, “worker” is broadly defined to include 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.

This includes (but is not limited to) the following: nurses, nursing assistants, physicians, technicians, therapists, phlebotomists, pharmacists and students and trainees. It also applies to contractual staff not employed by the healthcare facility and persons not directly involved in patient care but who could be exposed to infectious agents that can be transmitted in the healthcare setting (e.g., clerical, dietary, environmental services, laundry, security, engineering and facilities management, administrative, billing and volunteer personnel).

RELIGIOUS OR MEDICAL EXEMPTIONS 

The Order exempts workers from the vaccination requirements if a facility receives a declination form, signed by the individual, stating either of the following: (1) the worker is declining vaccination based on religious beliefs or (2) the worker is excused from receiving any COVID-19 vaccine due to qualifying medical reasons.

To be eligible for a qualified medical reason exemption, the worker must provide to their employer a written statement signed by a physician, nurse practitioner or other licensed medical professional practicing under the license of a physician. The statement should both declare that the individual qualifies for the exemption (but the statement should not describe the underlying medical condition or disability) and indicate the probable duration of the worker’s inability to receive the vaccine (or if the duration is unknown or permanent, so indicate).

If an operator of a covered facility deems a worker to have met the requirements of a medical or religious exemption, the CDPH’s Order of July 26, 2021, remains in effect, and the unvaccinated exempt worker must meet the following requirements when entering or working in such a facility:

  • Test for COVID-19 with either a polymerase chain reaction (PCR) or an antigen test that either has Emergency Use Authorization (EUA) by the US Food and Drug Administration (FDA) or be operating per the Laboratory Developed Test (LDT) requirements by the US Centers for Medicare & Medicaid Services (CMS). Testing must occur twice weekly for unvaccinated exempt workers in acute healthcare and long-term care settings; it should occur once weekly for such workers in other healthcare settings.

  • Wear a surgical mask or higher-level respirator approved by the National Institute for Occupational Safety and Health (NIOSH)—such as an N95 filtering facepiece respirator—at all times while in the facility.

The facility must maintain records of workers’ vaccination, exemption status and COVID-19 testing results consistent with all applicable privacy laws and regulations. The facility must provide these records to the local or state Public Health Officer or their designee promptly upon request, and in any event no later than the next business day after receiving the request.

These records must be maintained pursuant to the CDPH Guidance for Vaccine Records Guidelines & Standards with the following information: (1) full name and date of birth; (2) vaccine manufacturer; and (3) date of vaccine administration (for first dose and, if applicable, second dose).

DEADLINE FOR COMPLIANCE

This Order went into immediate effect on August 5, 2021, at 12:01 am. Facilities must be in full compliance by September 30, 2021.

Full compliance means all workers who provide services or work in facilities described in the Order must have their first dose of a one-dose regimen (Johnson and Johnson) or their second dose of a two-dose regimen (Moderna or Pfizer-BioNTech) by September 30, 2021, absent a medical or religious exemption.

The full August 5 Order is found here.

© 2021 McDermott Will & EmeryNational Law Review, Volume XI, Number 221
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About this Author

Michelle S. Strowhiro
Partner

Michelle S. Strowhiro is an employment advisor and litigator. She provides trusted counsel to US and international companies on all aspects of employment law compliance. Michelle partners with clients to establish and maintain their strong and lawful employment policies and practices; manage their employee relationships from hire to termination; conduct workplace investigations; administer leaves and other workplace accommodations; and resolve disputes. She provides manager and employee trainings on management and sexual harassment. She regularly prepares and negotiates...

310-788-1571
Partner

Yesenia M. Gallegos focuses her labor and employment practice on a wide range of matters, including restrictive covenants, wage and hour law, discrimination and harassment claims, executive employment agreements, leaves of absence, employee terminations and reductions in force. Yesenia represents employers in employment litigation—including class actions—pending in both state and federal court. She also represents employers in actions against former employees in trade-secret and embezzlement actions that require immediate restraining orders, injunctions and/or liens.

310-788-4199
Ludia Kwon Los Angeles Employment Attorney Lawyer McDermott Will & Emery
Associate

Ludia Kwon focuses her practice on employment matters.

While in law school, Ludia served as a certified law clerk in the Criminal Division of the US Attorney’s Office for the Northern District of California. She also was senior articles editor for the Asian American Law Journal.

310-788-4181
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