California Implements a Requirement that Workers and Visitors in Health Care Settings be Fully Vaccinated

August 5 Order Directed to Workers

The California Department of Public Health (“CDPH”) issued two new public health orders on August 5, 2021. The first August 5 Order directed to workers (“August 5 ODW”) requires “workers” in most “healthcare facilities” to be fully vaccinated or receive their second dose by September 30, 2021. The Order allows for two exemptions: (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. Testing will be an alternate means for satisfying this Order only for those who are granted an exemption pursuant to the Order, or who have received their first vaccination shot but are not yet fully vaccinated. A copy of the August 5 ODW can be found here: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Order-of-the-State-Public-Health-Officer-Health-Care-Worker-Vaccine-Requirement.aspx.

Definition of “Workers”

Under the August 5 ODW, “workers” 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. 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. 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). The August 5 ODW does not apply to workers who are working remotely, only.

See Public Health Order Questions & Answers: Health Care Worker Vaccine Requirement linked here: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/FAQ-Health-Care-Worker-Vaccine-Requirement.aspx.

Covered Healthcare Facilities

The August 5 ODW applies to:

i.              General Acute Care Hospitals

ii.            Skilled Nursing Facilities (including Subacute Facilities)

iii.           Intermediate Care Facilities

iv.           Acute Psychiatric Hospitals

v.            Adult Day Health Care Centers

vi.           Program of All-Inclusive Care for the Elderly (PACE) and PACE Centers

vii.          Ambulatory Surgery Centers

viii.         Chemical Dependency Recovery Hospitals

ix.           Clinics & Doctor Offices (including behavioral health, surgical)

x.             Congregate Living Health Facilities

xi.           Dialysis Centers

xii.          Hospice Facilities

xiii.         Pediatric Day Health and Respite Care Facilities

xiv.         Residential Substance Use Treatment and Mental Health Treatment Facilities

Entities Excluded From August 5 ODW

The CDPH clarified that dental offices are not included in the August 5 ODW. It further clarified that the high risk congregate settings — Adult and Senior Care Facilities, Homeless Shelters, and State and Local Correctional Facilities— remain covered by the July 26 Order, meaning they still have the option to either demonstrate proof of full vaccination or be tested. To the extent that the provision of health care is incorporated within congregate settings, these settings will be addressed in forthcoming guidance from CDPH that considers the unique circumstances of health care integrated into a congregate setting.

Requirement to Verify and Keep Record of Vaccination Status/Test Results

Each facility will be required to verify and keep record of vaccination status or test results. Pursuant the CDPH Guidance for Vaccine Records Guidelines & Standards, facilities have multiple options to verify vaccine status. These Guidance requires that facilities record (i) worker’s name and date of birth; (ii) date of vaccinations and vaccine manufacturer; or, if not vaccinated, (iii) documentation supporting the exemption and the ongoing lab test results. Such records should be treated as Personal Health Information maintained on a confidential basis. Local or state Public Health Officers or their designees are empowered to review and audit such records which must be provided promptly upon request (no later than one business day). Further information can be found here: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Vaccine-Record-Guidelines-Standards.aspx.

August 5 Order Directed to Indoor Visitors

The second August 5 public health order directed to visitors (“August 5 ODV”) directs hospitals, skilled nursing facilities, and intermediate care facilities to verify that visitors are fully vaccinated or have tested negative for COVID-19 in the prior 72 hours before indoor visits. Updates to guidance for visitors to other long-term care facilities is expected in the near future. This Order shall take effect on August 11, 2021, at 12:01 am. Facilities must be in full compliance at that time. Visitors who are visiting a patient in critical condition, when death may be imminent, are exempt from the vaccination and testing requirements of this Order. Such persons are required to physically distance and wear PPE. The Order conditions do not apply to visitors seeking only outdoor visits that will not require entering the facility. A copy of the August 5 ODV can be found here: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Order-of-the-State-Public-Health-Officer-Requirements-for-Visitors-in-Acute-Health-Care-and-Long-Term-Care-Settings.aspx.

Contact our firm if you have any questions or concerns regarding the most recent orders.

By: Kristina Kourasis, Esq.

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