As a result of COVID-19 outbreaks related to unvaccinated health care workers, the California Department of Public Health has issued two significant orders.  The first order, issued on July 26, requires that certain facilities (including several types of health care facilities) verify the vaccine status of all of their workers.

Shortly thereafter, the CDPH went a step further and issued a subsequent order on August 5, mandating that workers in certain health care facilities be vaccinated. The August Order was effective immediately, but the deadline to comply is September 30. The July Order is also still in effect.

These FAQs focus primarily on the August Order.

Which entities are covered?

The August Order applies to the following health care facilities:

• 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 and doctor’s offices (including behavioral health and surgical)

• Congregate living health facilities

• Dialysis centers

• Hospices

• Pediatric day health and respite care facilities

• Residential substance use treatment and mental health treatment facilities.

Which workers are covered?

In addition to including all employees who provide services or work in the health care facilities identified above, a covered health care “worker” is defined very broadly to mean “all paid and unpaid individuals who work in an indoor setting where (1) care is provided to patients, or (2) patients have access for any purpose.” Accordingly, “worker” includes those 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. Covered workers include nurses, nursing assistants, physicians, technicians, therapists, phlebotomists, pharmacists, and students and trainees. However, individuals who are not directly employed by the specified health care entities (for example, employees of staffing agencies) are also covered, as are individuals who are not directly involved in patient care but could be exposed to infectious agents that can be transmitted in the health care setting. Thus, the August Order applies even to vendors, medical equipment suppliers, volunteers, and employees in laundries, security, food services, environmental services, engineering and facilities management, as well as administrative, billing, and clerical employees.

Are there exemptions?

Yes.  Health care workers may apply for an exemption from the August Order based on religious beliefs or a qualified medical reason. To be considered, the worker must submit a signed declination form stating that the worker is either (1) declining vaccination based on religious beliefs, or (2) excused from receiving any COVID-19 vaccine due to qualifying medical reasons.

Proof in support of a request for religious exemption is not required. But to be eligible for the medical exemption, the worker must provide a statement to the health care entity declaring that the worker qualifies for the exemption and indicating the probable duration of the worker’s inability to receive the vaccine. The statement should not include the worker’s underlying medical condition and should be from a physician, nurse practitioner, or other licensed medical professional practicing under a physician license.

If a worker is granted an exemption, then the health care entity must comply with the CDPH’s original July Order relating to unvaccinated exempt workers entering or working in the health care facility.  Specifically, the health care entity must

• Conduct COVID-19 testing.  Vaccine-exempt workers in acute health care and long-term care settings must be tested for COVID twice a week. Exempt workers in other health care settings must be tested once a week. An acceptable testing method must be used (e.g., antigen, PCR, or any Nucleic acid amplification test). The testing must also have either an Emergency Use Authorization from the U.S. Food and Drug Administration or be conducted according to the Laboratory Developed Test requirements of the U.S. Centers for Medicare and Medicaid Services.

• Require face masks.  The entity must require vaccine-exempt workers to wear surgical masks or respirators at all times while indoors. Respirators must be approved by the National Institute for Occupational Safety and Health, such as N-95s.

When must the covered entities comply?

The specified health care entities must comply with the August Order by September 30. This means workers must have received their only dose of a one-dose regimen (Johnson & Johnson) or their second dose of a two-dose regimen (Pfizer or Moderna) by that date.

What are the penalties for non-compliance?

At this time it is unclear whether there are any penalties associated with noncompliance. However, the CPDH notes that the state’s regulating entities and local health jurisdictions can enforce the vaccine verification and exemption requirements. This suggests that there is at least the potential for monetary penalties or adverse action against the facility’s license.

What’s the big picture?

The onus of implementing the August Order is on the covered health care entities. They are required to enforce the vaccine mandate and testing requirements, and they also must verify and maintain vaccination and testing records per the CDPH’s guidelines. Accordingly, as the September 30 deadline draws near, health care entities should determine whether they need to create or update forms, policies, or procedures to ensure compliance with the August Order. It may also be beneficial for the entities to offer vaccinations on site.

What questions remain unanswered?

Finally, the August Order raises a host of other questions that need to be considered by health care entities. For example,

• What to do if a non-exempt worker refuses to comply with the vaccination mandate.

• What to do if a worker is unable to get the second dose of the two-dose regimen by the deadline because of the three- to four-week waiting period between doses.

• The consequences of imposing disciplinary action or terminating a worker’s employment for noncompliance.

• What to do if a worker’s request for exemption based on religious beliefs is deemed not truly “religious” in nature, or not sincere.

• How a health care entity can ensure compliance with the August Order with respect to its contracted vendors, business associates, staffing agencies, or other individuals or entities providing services or supplies, or who work on site.

• Whether the health care entity can shift the responsibility of verifying vaccination status and obtaining vaccination records to its contracted parties who provide services or supplies or work on site.

• Whether the health care entity will be liable to a worker who has an adverse reaction to the mandated vaccine.

• Whether to continue any incentives that were offered in an attempt to encourage workers to receive the vaccine.

• How the California law will mesh with newly announced initiatives by the U.S. Centers for Medicare & Medicaid Services.

The attorneys in our Los Angeles, Orange County, or San Francisco offices are happy to answer any questions that you may have or help you come into compliance with these orders.