In a July 26, 2021, order, Governor Newsom and the California Department of Public Health (CDPH) announced that employers in certain health care settings must either: (1) verify that their workers are fully vaccinated; or (2) test incompletely vaccinated or unvaccinated employees regularly. According to the order, these actions were necessary to protect “vulnerable populations” from the highly contagious and “possibly more virulent” COVID-19 Delta variant, which is causing a spike in COVID-19 cases, especially among unvaccinated individuals (approximately 38% of Californians 12 years of age and older). The order can be found here.
Additionally, on July 26, 2021, Governor Newsom confirmed that California state workers must either show proof of full vaccination status or be tested at least once a week. He also encouraged local government and “other employers” to adopt a similar protocol. Governor Newsom’s letter can be found here.
The order goes into effect on August 2, 2021, for state workers. It goes into effect on August 9, 2021, for hospitals, skilled nursing facilities, and other health care facilities. Such facilities must fully comply with the order by August 23, 2021.
The term "fully vaccinated" applies to individuals who have received either a second dose of a COVID-19 vaccine in a two-dose series (Pfizer-BioNTech or Moderna or vaccine authorized by the World Health Organization), or a single-dose vaccine (Johnson and Johnson/Janssen), and have been vaccinated for over two weeks. "Unvaccinated" means persons who have not received any doses of a COVID-19 vaccine or whose status is unknown. "Incompletely vaccinated" means persons who have received at least one dose of a COVID-19 vaccine but do not meet the definition of fully vaccinated.
In addition to state employees, three types of facilities must comply with this order:
An employee may produce one of the following types of proof to a covered employer: (1) a COVID-19 Vaccination Record Card which includes the name of the person vaccinated, the type of vaccine provided and date the last dose was administered; (2) a hard-copy photo of a Vaccination Record Card; (3) a photo of the employee’s Vaccination Record Card stored on a phone or electronic device; (4) documentation of COVID-19 vaccination from a health care provider; (5) a digital record that confirms the employee’s name, date of birth, vaccine dates and vaccine type; or (6) documentation of vaccination from other contracted employers who follow these vaccination records guidelines and standards. The order also specifies that, “In the absence of knowledge to the contrary, a facility may accept documentation presented as valid.”
The level of proof required under the order is greater than the self-attestation allowed by the Cal/OSHA Emergency Temporary Standards (ETS). This means that covered employers who have previously sought only their employees’ self-attestations of vaccination status must now seek additional documented proof of vaccination status.
The order reminds employers that they should continue to follow CDPH masking guidance (click here), the Cal/OSHA standards for Aerosol Transmissible Diseases (click here), and the Cal/OSHA ETS (click here).
Additionally, the order requires that acute health care and long-term care settings must provide respirators at no cost to all unvaccinated or incompletely vaccinated workers where they provide indoor care to patients or residents, or where patients or residents have access for any purpose.
For high-risk congregate settings and other health care settings, facilities must provide all unvaccinated or incompletely vaccinated workers with FDA-cleared surgical masks. Workers are required to wear FDA-cleared surgical masks in indoor settings anywhere they are working with another person.
Asymptomatic unvaccinated or incompletely vaccinated workers in acute health care and long-term care settings must undergo diagnostic screening testing and must be tested at least twice weekly. In high-risk congregate settings and other health care settings, asymptomatic unvaccinated or incompletely vaccinated workers are required to undergo diagnostic screening testing and must be tested at least once weekly. Unvaccinated or incompletely vaccinated workers in all facilities also must observe all other infection control requirements, including masking.
The order did not specify whether employers would have to pay employees for the time to get tested, travel time, and cost of a COVID-19 test for unvaccinated or partially vaccinated non-exempt employees. Given California’s employee-friendly environment and past experience with COVID-19 rules, we expect that covered employers will be required to bear the costs associated with this testing. We are hopeful that the State will clarify this before the order becomes operational on August 9, 2021.
While the order strongly encourages employee vaccination, it does not require that employees in these facilities be vaccinated. Instead, the order requires covered employers to verify the vaccination status of all employees, and if there are unvaccinated or incompletely vaccinated employees, the employers must provide masks to those employees and test employees for COVID-19 on a regular basis.
The order also did not specifically address the need to accommodate employees who have a sincerely-held religious belief or medical issue that would prevent them from being vaccinated. Nevertheless, employers must reasonably accommodate these circumstances, and the testing alternative referenced in the order makes it clear that regular testing would be considered a reasonable accommodation if an employee is unable to be vaccinated.
To address these new requirements, employers covered by the order may need to adjust their COVID-19 testing and verification procedures, and reevaluate their current COVID-19 Mandatory Prevention Plan under the Cal/OSHA ETS.
When tracking vaccination status and testing results, employees need not provide any information beyond what has been identified in the order. Any such information collected by employers must be treated as confidential medical information.
For questions regarding COVID-19 or to address other employment law issues, contact the employment attorneys at LightGabler.