In our last Act Now Advisory, we discussed California’s mandate requiring verification of workers’ vaccination status, masking guideline compliance, and testing requirements for unvaccinated and incompletely vaccinated workers, for three broad categories of high-risk facilities. As we noted, contrary to initial media reports, this previous July 26, 2021, order was actually not a vaccine mandate.

However, on August 5, 2021, the California Department of Public Health issued a new State Public Health Order (“Order”), which expressly mandates the COVID-19 vaccine for health care workers, as defined by the Order. Additionally, the Order identifies the Health Care Facilities subject to the Order’s requirements. Specifically, the Order requires that all covered health care workers be fully vaccinated by September 30, 2021. Given the time it takes to get fully vaccinated, this is essentially an order that unvaccinated health care workers start their vaccine regimen now.

There are, of course, individuals who may object to receiving the COVID-19 vaccine. To that end, a health care worker may be exempt from the vaccination requirement of the Order by providing the impacted facility with a declination form, signed by the individual, stating either “(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.” If an individual is seeking exemption due to Qualifying Medical Reasons, the health care worker must provide a signed written statement by a physician, nurse practitioner, or other licensed medical professional practicing under the license of a physician.

Definition of Health Care Worker

Pursuant to the Order, a health care worker refers to “all paid and unpaid individuals who work in indoor settings where (1) care is provided to patients, or (2) patients have access for any purpose.” Generally, the health care worker definition includes classifications that one would expect to be included. However, it also includes additional non-medical classifications that are ancillary to patient care and/or health care facilities (e.g., clerical staff, custodial staff, security personnel, etc.). Please see the Order for its non-exhaustive list of included classifications.

Employer Responsibilities

All impacted facilities subject to the Order will be required to maintain records of workers’ vaccination or exemption status (including workers’ testing results if exempt). Additionally, the impacted facilities must provide records to the local or state Public Health Officer upon request. Furthermore, impacted facilities are “encouraged” to provide on-site vaccinations and other resources for education and outreach regarding the vaccine and COVID-19 as a whole.

Important Dates Employers Should Know

The Order took effect on August 5, 2021, and all impacted California employer facilities must be in full compliance by September 30, 2021.

Questions and Complications Raised by the Order

Just as with the July 26, 2021, order, this Order raises several questions needing to be answered. The Order does not necessarily mandate impacted facilities to provide vaccines to its health care workers. Similarly, the Order does not address whether impacted facilities are required to conduct and/or pay for their health care workers’ testing for those who meet the exemption requirements, or if time spent testing would be paid or unpaid. However, the Order does require impacted facilities to track vaccination status and testing results for health care workers. Equally important is whether there will be further guidance on how to process declination forms or if each impacted facility will be allowed to process them consistent with their internal disability and/or accommodations processes. Hopefully, clearer guidance on these outstanding questions will be issued as time moves forward.

What California Employers Should Do Now

• Contact legal counsel to see if the Order applies to your business, and if so, how to comply.
• Ensure that your business is able to plan for and meet the requirements imposed by the Order to ensure immediate compliance and vaccination by September 30, 2021. This should include establishing written plans and procedures for compliance, adopting appropriate employment policies, engaging in employee education, reviewing potential union obligations where applicable, and, of particular importance, establishing an exemption validation process that meets the requirements of the Order while not violating the religious and disability accommodation obligations for state and federal law.

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