Employment Law Bulletin | January 18, 2022

CDPH Requires Health Care Workers to Receive Booster Dose by February 1, 2022

A recent California Department of Public Health (CDPH) order requires health care workers to receive a COVID-19 booster vaccination by February 1, 2022.  The Order is based on a finding that current vaccine requirements are not proving sufficient in health care settings to prevent transmission of the more transmissible Omicron variant.  The 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 & Doctor Offices (including behavioral health, surgical)
• Congregate Living Health Facilities
• Dialysis Centers
• Hospice Facilities
• Pediatric Day Health and Respite Care Facilities
• Residential Substance Use Treatment and Mental Health Treatment Facilities

Under the Order, health care workers must be fully vaccinated and boosted for COVID-19 as set forth in the table below.  Workers currently eligible for booster doses per the Table below must receive their booster dose by no later than February 1, 2022.  Workers not yet eligible for boosters must be in compliance no later than 15 days after the recommended timeframe above for receiving the booster dose.

Workers may be exempt from the vaccination requirements only upon providing the 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.

To be eligible for a Qualified Medical Reasons exemption, the worker must also provide to their employer a written statement 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 (but the statement should not describe the underlying medical condition or disability) and indicating the probable duration of the worker’s inability to receive the vaccine (or if the duration is unknown or permanent, so indicate).

Unvaccinated exempt employees and booster-eligible workers who have not yet received their booster must:

1. wear a surgical mask or higher-level respirator approved by the National Institute of Occupational Safety and Health (NIOSH), such as an N95 filtering facepiece respirator, at all times while in the facility; and
2. test twice weekly (employees in acute health care and long-term care settings) or once weekly (workers in other health care settings)

Facilities must begin testing all booster-eligible workers who have not yet received their booster by January 7, 2021.  Employers must continue testing unvaccinated employees with medical and religious exemptions as required by prior orders.  FAQs regarding the new Order can be found here.

CDPH Issues Temporary Isolation, Quarantine and Return to Work Criteria for Employees of Hospitals and Skilled Nursing Facilities

As a result of a critical staffing shortage in hospitals and skilled nursing facilities, the California Department of Public Health (CDPH) has issued temporary guidance allowing workers in hospitals and skilled nursing facilities to return to work immediately, without quarantine, isolation or testing, if they are asymptomatic after being exposed to or testing positive for COVID-19.  Such employees must wear a N95 respirator.  Facilities implementing this change must have made every attempt to bring in additional registry or contract staff and must have considered modifications to non-essential procedures.

The Guidance provides that health care workers who have been exposed to or tested positive for COVID-19 should preferably be assigned to work with COVID-19 positive patients.  However, the Guidelines acknowledge this may not always be possible in areas where facilities are experiencing extreme staffing shortages and settings such as the emergency department where a patient’s COVID-19 status is unknown.

The temporary Guidance can be found here.

At SMT, we realize the ever-changing state and federal COVID laws are complicated and have great impact on your business or organization.  Please reach out to an SMT employment attorney if we can be of help.

Lisa Ann Hilario

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SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown