Seyfarth Synopsis: On August 5, 2021, California's Public Health Department ordered "health care" workers to provide proof that they received their final dose of a COVID-19 vaccine by September 30, 2021. Unlike the July 26, 2021, Order, the August 5 Order does not allow workers to avoid the vaccine mandate by testing regularly, except for workers who claim a religious or medical exemption.
There's No Earthly Way of Knowing Which Direction They Are Going
On August 5, 2021, the California Public Health Department issued an Order requiring workers in certain health care settings to show proof that they received their final dose of a COVID-19 vaccine by September 30, 2021.
The August 5 Order builds on Governor Gavin Newsom's announcement (and the related July 26, 2021 Public Health Order) from just a week prior, which requires state workers as well as workers in health care and "high-risk congregate settings" to either demonstrate proof of full vaccination or be tested for COVID-19 at least once or twice per week, beginning no later than August 23, 2021.
The August 5 Order now makes vaccination mandatory for workers in facilities covered by the Order. It does not allow workers to avoid COVID-19 vaccination by testing regularly for COVID-19, except for workers who claim a valid religious or medical exemption.
Everything in This Room is Vaccinated: Health Care Facilities and Workers Covered by the Order
The health care facilities covered by the August 5 Order are largely the same as those covered by the July 26 Order. But, the August 5 Order does not apply to the "high-risk congregate settings" listed in the July 26 Order (i.e., adult and senior care facilities, homeless shelters, and state and local correctional facilities detention centers), or dental offices.
Under the August 5 Order, vaccination is mandatory for all workers at:
- 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
The August 5 Order applies to all workers in indoor settings where patients have access, including workers not directly involved in patient care, such as clerical, laundry, facilities management, security staff, etc., who may have the potential for direct or indirect exposure to COVID-19 airborne aerosols. The Order also applies to all workers—whether they are employees, contractors, or volunteers.
Exemptions for Religious or Medical Reasons Must Be Documented
The August 5 Order allows the familiar exemptions for bona fide religious or medical reasons, if supported by documentation:
For both exemptions, the worker must provide a form signed by the worker stating that they are declining the vaccine based on religious beliefs or for medical reasons.
For the medical exemption, the worker also must provide a statement signed by a licensed medical professional stating that the worker qualifies for an excuse from the vaccination requirement for a qualifying medical reason. The statement must indicate the likely duration of the worker's inability to receive the vaccine (or that the duration is unknown or permanent).
Workers claiming an exemption in acute health care and long-term care settings must test twice weekly. Workers in other health care settings must test once weekly. Unvaccinated workers also must wear a surgical mask or higher-level respirator such as an N95 mask at all times.
The Golden Ticket: Facilities Must Keep Vaccination Cards or Similar Records
Other workplace regulations, such as the Cal/OSHA Emergency Temporary Standard on COVID-19 (ETS), have allowed workers to merely attest to their vaccination status as related to those requirements. That is not enough for workplaces covered by the August 5 Order.
Instead, vaccination records must be kept pursuant to the California Public Health Department's Guidance for Vaccine Guidelines & Standards. The records must include the worker's full name and date of birth, the vaccine manufacturer, and date the final dose was administered. Acceptable documentation includes a physical or digital image of the worker's COVID-19 vaccination record card, other proof of vaccination documentation from a healthcare provider, or a digital record with a QR Code that can be scanned by a SMART Health Card reader. The facility may also rely on documentation of vaccination provided by an employer with whom the facility contracts, if that employer also follows the Department's vaccination records guidelines and standards.
For workers who have claimed religious or medical exemptions, the covered workplace must also keep records of the worker's testing results.
These records must be made available to local or state public health departments no later than the next business day after receiving a request.
Great Scott! Gadzooks! New Requirements for Visitors to Health Care Facilities Too
A separate August 5, 2021 California Public Health Order requires that general acute care hospitals, skilled nursing facilities, and intermediate care facilities also verify that visitors coming indoors are either (a) fully vaccinated or (b) have received a negative COVID-19 PCR or antigen test within 72 hours of the visit.
Facilities must verify vaccination status by viewing a copy of a vaccination card or medical documentation, viewing a digital image of the record, or by using a digital QR code scanned by a SMART Health Card reader. Facilities must track visitor vaccination status or documentation of a negative COVID-19 test, and have the information available to provide to the local health department in the event of an investigation.
Workplace Solutions
In light of the new August 5 vaccine mandate, covered employers must rapidly adjust their COVID-19 testing and verification procedures. They may also need to reevaluate their current COVID-19 policies and procedures if any of their employees or portions of facilities are covered by the Cal/OSHA ETS.
And, stay alert and continue to watch this blog! These orders are certainly not showing any signs of slowing... employers not covered by the August 5 Order may soon see similar orders if considered high risk for COVID-19.
Consult your Seyfarth attorney, including any member of Seyfarth's Workplace Safety Team, to ensure that your business is in compliance with the ever-changing COVID-19 rules and regulations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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