Note: On July 28, 2021, the CDPH issued new guidance recommending that all Californians, regardless of vaccination status, wear masks while indoors. The guidance also adds Adult and Senior Care Facilities to the list of settings where all individuals must wear masks indoors. Access the updated Guidance here.

On July 26, 2021, Governor Newsom announced that all California state workers and certain workers in health care and high risk congregate settings will be required to either show proof of vaccination or be tested regularly for COVID-19. The announcement encourages all local governments and businesses to adopt similar measures. The new vaccination verification and other COVID-19 prevention requirements for health care and other high-risk settings are codified in an Order released by the California Department of Public Health (CDPH). Learn more about these new mandates and recommendations below.

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Which Workers are Affected?

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The CDPH’s July 26, 2021 Order specifically applies to workers in certain health care, long-term care, and other high-risk congregate facilities, which include:

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Category A. Acute Health Care and Long-Term Care Settings:

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

Category B. High-Risk Congregate Settings: 

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

Category C. 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

Vaccination Verification, Masking, and Testing Requirements

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Vaccination Verification

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Eligible facilities will be required to create and execute a plan to track and verify the vaccination status of all workers pursuant to the CDPH Guidance for Vaccine Records Guidelines & Standards. Vaccination verification records collected must be made available, upon request, to the local health jurisdiction for COVID-19 investigation purposes. Workers who are not fully vaccinated, for whom vaccine status is unknown, or documentation is not provided, are considered unvaccinated.

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Workers are considered “fully vaccinated” against COVID-19 two weeks after they have received either the second dose in a 2-dose series or a single-dose vaccine with emergency use authorization or approval from the FDA, or authorization from the World Health Organization (WHO).

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Masking/Respirators

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These facilities must still adhere to the current CDPH Masking Guidance, as well as Cal/OSHA’s Aerosol Transmissible Diseases (ATD) Standard and Emergency Temporary Standards (ETS) for COVID-19 Prevention. The Order further requires facilities to provide either respirators or FDA-cleared surgical masks to unvaccinated and incompletely vaccinated workers as follows:

• Category A: All unvaccinated and incompletely vaccinated workers who work indoors where (1) care is provided to patients or residents, or (2) to which patients or residents have access for any purpose must be provided respirators, and are strongly encouraged to wear them. These facilities must provide the respirators at no cost, and workers must be instructed on how to properly wear the respirators and how to perform a seal check according to the manufacturer’s instructions.
• Categories B and C: Where Title 8 of the California Code of Regulations does not require the use of respirators, facilities are required to provide all unvaccinated or 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.

Testing

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Testing requirements vary slightly for workers in different healthcare and high-risk congregate facilities. While all asymptomatic unvaccinated or incompletely vaccinated workers are required to undergo diagnostic screening testing, workers in Category A facilities must be tested at least twice weekly and workers in Categories B and C must be tested at least once weekly. Workers may choose either antigen or molecular tests to satisfy this requirement, but any PCR (molecular) or antigen test used must either have Emergency Use Authorization by the FDA or be operating per the Laboratory Developed Test requirements by the U.S. Centers for Medicare and Medicaid Services.

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Affected facilities must report applicable contact tracing and test results to the appropriate local public health department. The CDPH recommends that facilities with workers required to undergo workplace diagnostic screening testing create plans for tracking test results and conducting workplace contact tracing to fulfill this requirement.

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When Do These Requirements Take Effect?

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This order will take effect on August 9, 2021, and eligible facilities must be in full compliance with the Order by August 23, 2021.

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Other State and Federal COVD-19 Prevention Recommendations

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Newsom’s press release further encourages local governments and businesses across the state to adopt similar COVID-19 prevention requirements. This announcement comes as local governments, such as Los Angeles County, along with national organizations, such as the CDC, reinstate masking requirements and recommendations, regardless of vaccination status. On July 27, 2021 the CDC issued updated recommendations advising people in areas with substantial or high transmission, such as Los Angeles County, to wears masks indoors, regardless of vaccination status.

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These recommendations come as California experiences the fastest increase of COVID-19 cases during the entire pandemic, which is, in part, due to the spread of the Delta variant. California employers should prepare to adapt to further vaccination, testing, and masking recommendations and requirements in the coming months.

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Resources for California Employers

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View the CDPH’s July 26, 2021 Order here.

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View Governor Newsom’s July 26, 2021 press release here.

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Learn more about Los Angeles County’s renewed masking requirements here.

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View the CDC’s July 27, 2021 Interim Public Health Recommendations for Fully Vaccinated People here.

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If you have questions regarding the application of any of the updated COVID-19 prevention recommendations and mandates to your business, please contact one of the following attorneys in The Maloney Firm’s Employment Law Department: Patrick Maloney, Lisa Von Eschen, Samantha Botros, or Nicholas Grether.

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