On August 5, 2021, Tomás J. Aragón, the Director and State Public Health Officer for the California Department of Public Health (CDPH), ordered that, “[a]ll workers who provide services or work in health care facilities…have their first dose of a one-dose regimen or their second dose of a two-dose regimen by September 30, 2021.” The full August 5 Order can be found here.
Note that the August 5 Order supplements, but does not supersede, the July 26, 2021 Public Health Order ("July 26 Order") that required health care facilities to verify the vaccination status of all employees, among other requirements such as testing and masking. You can review our article on the July 26 Order here. According to Mr. Aragón, the new August 5 Order is necessary because, “Hospitals, skilled nursing facilities (SNFs), and the other health care facility types identified in this order are particularly high-risk settings where COVID-19 outbreaks can have severe consequences for vulnerable populations including hospitalization, severe illness, and death.” As such, he stated, “As we respond to the dramatic increase in cases, all health care workers must be vaccinated to reduce the chance of transmission to vulnerable populations.”
The order went into effect yesterday, August 5, 2021, but covered facilities and workers must be in compliance by no later than September 30, 2021.
Under the August 5 Order, the following fourteen facilities are covered: “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 and Residential Substance Use Treatment and Mental Health Treatment Facilities.
By contrast, the July 26 Order contained nineteen categories of covered facilities. Which five facility types have now been excluded under this new order? The five missing facilities are adult and senior care facilities, homeless shelters, state and local correctional facilities and detention centers, adult day programs licensed by California Department of Social services and dental offices. Note, however, that each of these facilities still must comply with the requirements of the July 26 Order.
According to the August 5 order, the only acceptable COVID-19 vaccines are those vaccines authorized for emergency use by the U.S. Food and Drug Administration (FDA) and the World Health Organization (WHO). For a two-dose regimen, that includes the Pfizer-BioNTech or Moderna or vaccine authorized by the WHO, and for the one-dose regimen, only the Johnson and Johnson [J&J]/Janssen vaccine qualifies. See the FDA vaccine page here and the WHO vaccine page here.
Recall that under the July 26 Order, a health care worker is considered fully vaccinated only if the worker has, “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 ha[s] been vaccinated for over two weeks. For currently-unvaccinated workers seeking to become fully vaccinated by receiving a two-dose vaccine regimen before the September 30, 2021 deadline, that means that time is of the essence.
All paid and unpaid health care workers must comply with the August 5 Order, but only if they work in areas at which “care is provided to patients,” or “patients have access for any purpose." This includes workers serving in health care or other health care settings who have the potential for direct or indirect exposure to patients or SARS-CoV-2 airborne aerosols.
Importantly, the August 5 Order does not apply to corporate offices just because the company is a health care company, nor to completely remote workers. It does, however, apply to the following types of workers who provide patient care or who may come into contact with patients: “Workers include, but are not limited to, nurses, nursing assistants, physicians, technicians, therapists, phlebotomists, pharmacists, students and trainees, contractual staff not employed by the health care facility, and persons not directly involved in patient care, but who could be exposed to infectious agents that can be transmitted in the health care setting (e.g., clerical, dietary, environmental services, laundry, security, engineering and facilities management, administrative, billing, and volunteer personnel).”
Yes. According to the August 5 Order, covered workers may be exempt from the vaccination requirements under the order if they provide their employer with, “…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.” This guidance from the State aligns with previous guidance from the Equal Employment Opportunity Commission found heree and the Department of Fair Employment and Housing here.
The order also notes that if a covered worker claims an exemption due to “Qualifying Medical Reasons,” the employer is empowered to request a written medical certification, “…signed by a physician, nurse practitioner, or other licensed medical professional practicing under the license of a physician stating that the individual qualifies for the exemption….”
Remember that workers do not need to provide any medical information beyond what has been identified in the order. All such information collected by employers must be treated as confidential medical information.
The EEOC has previously opined that a request for religious exemption may be supported by one of the following:
In order for an exempt unvaccinated worker to be allowed to enter a covered health care facility, the worker must do two things:
Employers should review the July 26 Order for additional details about the masking requirements by facility type.
As with the July 26 Order, this order is silent as to whether employers would have to pay employees for the time to get vaccinated and the costs of a COVID-19 test (for exempt unvaccinated or partially-vaccinated hourly employees). As we have noted previously, given California’s employee-friendly environment and our past experience with COVID-19 rules, we expect that covered employers will be required to bear the costs associated with vaccination (if any), as well as the costs of any required testing for an exempted unvaccinated employee.
For those employees wishing to become fully vaccinated, the Federal Families First Coronavirus Response Act (optional to employers at this point), the State COVID-19 Supplemental Paid Sick leave (applicable to employers with 25 or more employees), and applicable local City or County ordinances may provide employees with paid time off options.
Finally, to address these new requirements, employers covered by the August 5 Order also may need to adjust their COVID-19 vaccination requirements and reevaluate their current COVID-19 Prevention Plan under the Cal/OSHA ETS.
For questions regarding COVID-19 regulations or to address other employment law issues, contact the employment attorneys at LightGabler.