Thakur Law Firm, APC
CALIFORNIA IMPLEMENTS MANDATORY VACCINATION POLICY FOR ALL HEALTHCARE WORKERS
On July 26, 2021 and August 5, 2021, the California Department of Public Health (CDPH) issued two new State Public Health Officer Orders (Health Orders) requiring all state employees, contractors, and volunteers who work in health care and high-risk congregate settings to either show documentary evidence of being fully vaccinated or consent to regular COVID-19 testing at least once a week. This order, which applies to all workers, including those with medical contraindications to the COVID vaccines, and those who have recovered from COVID-19 in the prior 90 days, is intended to encourage vaccination among state workers to the greatest degree possible and combat the rising rates of new COVID-19 infections stemming from the new delta variant.
Which Facilities Are Affected by This Order?
The new Health Orders, which went into effect on August 9, 2021, at 12:01 AM, affects the following types of facilities: (1) acute health care and long-term care settings (e.g. general acute care hospitals, skilled nursing facilities (SNFs), and intermediate care facilities); (2) high-risk congregate settings (e.g. adult and senior care facilities, homeless shelters, state and local correctional facilities and detention centers); and (3) other health care settings such as acute psychiatric hospitals, adult day health care centers, adult day programs that are licensed by the California Department of Social Services, all-inclusive care programs for the elderly, ambulatory surgery centers, chemical dependency recovery hospitals, clinics and doctor offices, congregate living health facilities, dental offices, dialysis centers, hospice facilities, pediatric day health and respite care facilities, and residential substance use treatment and mental health treatment facilities as well. Each of these facilities are expected to come into full compliance with the terms of the Health Orders by September 30, 2021.
What Form of Verification is Acceptable for Verifying a Worker’s Vaccination Status?
Under current state law, and in accordance with Cal/OSHA’s Emergency Temporary Standard on COVID-19 (ETS), employees are currently permitted to verify their vaccination status by providing self-attestation of their vaccination status; therefore, currently, workers need not provide any actual documentary evidence of being vaccinated. However, in accordance with this new order, state employees and contractors must provide actual documentary evidence of their vaccination status. Any employee who does not provide documentary evidence of having been fully vaccinated must be treated as unvaccinated. The forms of acceptable proof allowed under the Health Orders are:
A Covid-19 Vaccination Record Card issued by the Department of Health and Human Services Centers for Disease Control & Prevention or a WHO-issued yellow card. Such vaccination record card must show the worker’s name as being the person vaccinated, the type of vaccine they received, and the date the last dose was administered.
A photo of a vaccination card provided as a separate document.
A photo of the worker’s vaccination card stored on the worker’s phone or other electronic device.
Documentation of vaccination from the worker’s healthcare provider.
A digital record that includes a QR code that, when scanned by a SMART Health Card reader, displays the worker’s name, date of birth, vaccination dates and type, and confirms the vaccine record as being an official record of the State of California.
Documentation of vaccination from other contracted employers whom the worker works for that follows these vaccination records, guidelines, and standards.
Where can Workers Obtain Copies of Vaccination Verification?
All individuals who receive a COVID-19 vaccine in the State of California should receive a paper DHHS CDC COVID-19 Vaccination Record Card. For all vaccinations that are administered state-distributed vaccines, and for vaccines administered as part of the federal pharmacies, dialysis center, and federally qualified health center programs, data is entered into California’s Immunization Information System. A copy of this record may be requested by the worker via phone, email, or online at https://myvaccinerecord.cdph.ca.gov
Workers who are vaccinated through a healthcare provider may also request copies of their records from their healthcare provider. Workers who received their vaccine at a federal facility (e.g. Department of Defense, Indian Health Services, Veterans Affairs, etc.) will need to request a vaccine record from those facilities directly as that information is not submitted to or documented in the California Immunization Information System.
Affected facilities are also required to keep records of workers’ vaccination verifications, which must be made available to the local health jurisdiction upon request. The Health Orders also require acute health care and long-term care settings to provide respirators to 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. Like workplaces covered by the ETS, these facilities must provide the respirators at no cost to workers and workers must be instructed on how to properly wear the respirator and how to perform a seal check per the manufacturer’s instructions.
Furthermore, all facilities affected by this order must continue to adhere to Cal/OSHA’s ETS or Aerosol Transmissible Diseases (ATD), where otherwise applicable.
What are the Testing Requirements for Unvaccinated Workers?
In accordance with the new Health Orders, all affected facilities must implement a mandatory testing policy for all unvaccinated or incompletely vaccinated workers (e.g. a worker who received their second dose of the Moderna or Pfizer vaccine or their first dose of the Johnson and Johnson vaccine less than two weeks prior.) Workers subjected to such mandatory testing may choose to receive either an antigen or molecular test to satisfy this requirement but, in any case, all unvaccinated or incompletely vaccinated workers working in a high-risk congregate setting or other health care setting must be tested at least once a week until they are fully vaccinated. Workers working in acute health care and long-term care settings must be tested at least twice per week until they are fully vaccinated. Additionally, any molecular or antigen test used to satisfy this requirement must either have emergency use authorization by the US Food and Drug Administration or be operating per the laboratory developed test requirements by the US Centers for Medicare and Medicaid Services.
In addition to submitting to weekly testing, all unvaccinated or incompletely vaccinated workers must also observe all other infection control requirements, including masking. Furthermore, no worker may be exempted from the testing requirement; a previous COVID-19 infection from which the worker recovered from more than 90 days earlier or a previous positive antibody test for COVID-19 do not waive this requirement.
All facilities that are affected by these Health Orders with employed workers or contractors who are required to undergo mandatory COVID-19 testing should have a plan for tracking test results, conducting workplace contact tracing if needed, and must report results of the tests to local public health departments. Fortunately, there are IT platforms that have been developed that can help implement and facilitate this process for affected facilities.
How to Comply as an Affected Facility
In light of the new rules implemented by these Health Orders, affected health care facilities and medical practices seeking to comply with these Health Orders should update their COVID-19 vaccination and testing verification policies and procedures in accordance with the Health Orders as soon as possible, provide notice to all employees and independent contractors of the need to comply with these Health Orders, and consult with legal counsel to ensure compliance. As California moves forward with its new rules and regulations relating to COVID-19, the experienced employment law attorneys at Thakur Law Firm will continue to closely monitor developments that impact their healthcare and business clients.
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