California DPH Order Mandates Vaccination for Healthcare Workers
On August 5, the California Department of Public Health issued an order requiring COVID-19 vaccinations for all healthcare workers, allowing only narrow exemptions for medical reasons and religious beliefs. The order requires that covered workers be fully vaccinated (one dose of a one-dose vaccine or two doses of a two-dose vaccine) by September 30, 2021.
As we blogged last month, Governor Newsom has already ordered state workers, healthcare workers, and other employees in “high-risk congregate settings” to get inoculated against COVID-19 or submit to weekly testing and mask-wearing. However, this new CDPH order mandates inoculation for healthcare workers absent narrow medical or religious exemptions. In so doing, California becomes the first state in the nation to mandate COVID-19 vaccination for healthcare workers.
The order broadly applies to any “Health Care Facilities,” defined in the order as any of the following:
- 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
- Residential Substance Use Treatment and Mental Health Treatment Facilities
Those covered are all individuals, paid and unpaid, who work in any indoor setting where (1) care is provided to patients, or (2) patients have access for any purpose. The order specifically states that contract staff not employed by the health care facility and persons not involved in patient care, but who could be exposed to infectious agents (e.g., clerical, volunteers, laundry, security, facilities management, administrative, etc.) are covered by the order.
Workers may be exempted from this requirement only upon providing the health care facility with a signed declination form stating (1) the worker is declining vaccination based on religious beliefs, or (2) the worker is excused from receiving the vaccine for a qualifying medical reason. To be eligible for a qualifying medical reason, the worker must provide a signed statement from a physician, nurse practitioner or “other licensed medical professional practicing under the license of a physician” stating that the individual qualifies for the exemption and indicating the probable duration of the worker’s inability to receive the vaccine. The statement should not disclose the underlying medical condition. Before a health care facility inquires into an employee’s claimed medical reason or “religious belief” underlying the declination, counsel should be consulted.
Individuals who are exempt from the vaccine requirements due to religious beliefs or a qualified medical reason must test for COVID-19 twice weekly if they work in an acute health care or long-term care setting and once weekly in all other settings. They must also wear a surgical mask or higher-level respirator, such as an N95 mask, at all times while in the facility.
The healthcare facility must maintain records of vaccination (name, date, vaccine type and date of administration) or exemption status and keep copies of unvaccinated worker declination forms. Records of any regular testing required for exempt individuals must also be maintained. As we have previously blogged, any vaccination and testing information should be treated as a confidential medical record under the ADA and should be stored separately from the employee’s personnel file. The order does not identify specific penalties for failure to comply with the order.
If you are a California healthcare provider and have questions about this new mandatory vaccination order, please contact your favorite CDF attorney.