On August 11, 2021, Governor Newsom and the California Department of Public Health (CDPH) announced a first-of-its-kind mandatory order for the, “…verification of vaccination status among eligible K-12 school workers, and …diagnostic screening …of unvaccinated workers (August 11 Order). No other State in the Nation has a similar requirement. This newly minted order follows closely on the heels of similar “first-in-the-nation requirement[s]” for the health care facilities and public employees.
The August 11 Order states that it is necessary in order, “…to minimize the risk that [K-12 school workers] will transmit [COVID-19] while on K-12 school campuses, where a majority of students are not vaccinated and younger students are not yet eligible for vaccines.” The August 11 Order can be found here. Governor Newsom’s press release can be found here.
The August 11 Order goes into effect on Thursday, August 12, 2021, at 12:01 a.m. Covered schools must be in full compliance with the August 11 Order by no later than October 15, 2021.
All public and private schools serving students in transitional kindergarten through grade 12.
Yes. The August 11 Order does NOT apply to home schools, child care or to higher education.
Covered workers include, “all paid and unpaid adults serving in the school settings… [including without limitation], certificated and classified staff, analogous staff working in private school settings, and volunteers who are on-site at a school campus supporting school functions.”
A covered worker may produce one of the following types of proof to a covered school:
Like the July 26 Order (for health care facilities), the August 11 Order specifies that, “In the absence of knowledge to the contrary, a school may accept documentation presented as valid.”
Covered schools are also required to, “…have a plan in place for tracking verified worker vaccination status.”
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.
Asymptomatic unvaccinated or incompletely vaccinated workers must undergo diagnostic testing at least once weekly. The diagnostic test must be a PCR (molecular) or antigen test that has, “Emergency Use Authorization by the U.S. Food and Drug Administration, or be operating per the Laboratory Developed Test requirements by the U.S. Centers for Medicare and Medicaid Services. Covered schools must also have “…a plan in place for tracking test results and conducting workplace contact tracing.”
Notably, the August 11 Order states that a, “[p]revious history of COVID-19 from which the individual recovered more than 90 days earlier, or a previous positive antibody test for COVID-19, do not waive this requirement for testing.”
While the August 11 Order strongly encourages school worker vaccination, just like the July 26 Order, it does not expressly require that covered workers in school settings be vaccinated. Instead, the August 11 Order only requires that covered schools verify the vaccination status of covered workers, and if there are unvaccinated or incompletely vaccinated workers, that those workers be tested on weekly basis.
The August 11 Order also did not specifically address the need to accommodate workers who have a sincerely-held religious belief that would prevent them from being vaccinated. The August 11 Order, however, does provide that, “Unvaccinated or incompletely vaccinated workers…are not exempted from the testing requirement even if they have a medical contraindication to vaccination, since they are still potentially able to spread the illness.”
Finally, when tracking vaccination status and testing results, covered workers do not need to provide any information beyond what has been identified in the August 11 Order. Any such information collected by the covered schools 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.