Employment Law Bulletin | July 29, 2021

State Public Health Officer Orders Some Employers to Verify Employee Vaccination Status and Conduct Regular Testing of Unvaccinated Employees

On July 26, 2021, the California Public Health Officer ordered hospitals, skilled nursing facilities, high-risk congregate settings and other health care settings to verify Covered Workers’ vaccination status and regularly test those who are not “fully vaccinated.”  An individual is considered “fully vaccinated” for COVID-19 two weeks or more after they have received the second dose in a 2-dose series (Pfizer-BioNTech or Moderna or vaccine authorized by the World Health Organization), or two weeks or more after they have received as single-dose injection (Johnson & Johnson/Janssen).

The Order for health care workers and congregate facilities will take effect on August 9, and health care facilities will have until August 23 to come into full compliance.

Covered Facilities

The New Order applies to the following Covered Facilities:

Acute Health Care and Long-Term Care Settings

• General Acute Care Hospitals
• Skilled Nursing Facilities (including Subacute Facilities)
• Intermediate Care Facilities

High-Risk Congregate Settings

• Adult and Senior Care Facilities
• Homeless Shelters
• State and Local Correctional Facilities and Detention Centers

Other Health Care Settings

• Acute Psychiatric Hospitals
• Adult Day Health Care Centers
• Adult Day Programs Licensed by the California Department of Social Services
• 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
• Dental Offices
• Dialysis Centers
• Hospice Facilities
• Pediatric Day Health and Respite Care Facilities
• Residential Substance Use Treatment and Mental Health Treatment Facilities

Covered Workers

“Covered Workers” include all paid and unpaid persons serving in health care, other health care or congregate settings who have the potential for direct or indirect exposure to patients/clients/residents or SARS-CoV-2 airborne aerosols.  Covered 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).

Verification of Vaccination Status

Covered Facilities must verify the vaccine status of Covered Workers, which includes:

• requiring workers to provide documentary proof of vaccination – employee attestation is not sufficient (the accepted types of documentation are included in the Order at section II.A.)
• having a plan in place to track verified worker vaccination status (records must be available upon request to the local health jurisdiction)
• workers who are not fully vaccinated, or for whom vaccination status is unknown or documentation is not provided, must be considered unvaccinated.

COVID-19 Testing Requirements

The Order requires Covered Facilities to test all Covered Workers who are not fully vaccinated as set out below.  (Diagnostic testing of asymptomatic fully vaccinated workers is not currently required).

• Acute Health Care and Long-Term Care Settings:  at least twice weekly
• High-Risk Congregate Settings and Other Health Care Settings:  at least once weekly

Covered Workers who have not been fully vaccinated must be tested even if they have a previous history of COVID-19, or a previous positive antibody test for COVID-19.

Covered Facilities should have a plan in place for tracking test results, conducting workplace contact tracing, and must report positive results to local public health departments.

Respirator and Mask Requirements

All Facilities Covered by the Order

Covered Facilities must strictly adhere to current California Department of Public Health (CDPH) Masking Guidance.  To the extent they are already applicable, facilities must also continue to adhere to Cal/OSHA’s standards for Aerosol Transmissible Diseases (ATD), which requires respirator use in areas where suspected and confirmed COVID-19 cases may be present, and the Emergency Temporary Standards which require that all unvaccinated workers be provided a respirator upon request.

Acute Health Care and Long-Term Care Settings

In addition to respirators required under the ATD, facilities must provide respirators to all unvaccinated and incompletely vaccinated workers who work in indoor work settings where (1) care is provided to patients or residents, or (2) to which patients or residents have access for any purpose. Workers are strongly encouraged to wear respirators in all such settings. The facility must provide the respirators at no cost, and workers must be instructed how to properly wear the respirator and how to perform a seal check according to the manufacturer’s instructions.

High-Risk Congregate Settings and Other Health Care Settings

Where the ATD does not require the use of respirators, Covered Facilities must provide all unvaccinated and incompletely vaccinated workers with FDA-cleared surgical masks. Workers are required to wear FDA-cleared surgical masks in indoor settings anywhere they are working with another person.

State Public Health Officer Issues Updated Mask Guidance

On July 28, 2021, the State Public Health Officer issued updated Mask Guidelines.  The new updates:

• add recommendations for universal masking indoors statewide
• add Adult and Senior Care Facilities to settings where all individuals must wear masks indoors
• reference the new requirements for unvaccinated workers in the State Health Officer’s July 26, 2021 Order

New Mask and Testing Recommendations for Vaccinated Individuals

Earlier this week, the Centers for Disease Control and Prevention (CDC) and the California Department of Public Health recommended that fully vaccinated individuals return to wearing mask indoors when in public for those in areas of substantial or high transmission.  The CDC website has a COVID-19 Data Tracker where people can check the transmission levels.  Currently, Sonoma, Marin, Napa and most other California counties are in “substantial or high transmission” areas.

The CDC now also recommends that fully vaccinated people who have a known exposure to someone with suspected or confirmed COVID-19 be tested 3-5 days after exposure, and wear a mask in public indoor settings for 14 days or until they receive a negative test result.

Contact an SMT employment law attorney if you have questions about these new requirements or if we can be of assistance with any other workplace issues.

Lisa Ann Hilario

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Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown