As some jurisdictions roll out mandatory vaccination against COVID-19 (coronavirus) for some workers, it’s important to keep an eye on requirements in your local area. Here’s a summary of where things stand as of today:
Federal requirements: On July 29, 2021, President Biden announced that federal agencies must require federal contractors who work on site at federal facilities to be fully vaccinated or else submit to regular testing, wear masks, and maintain physical distancing. Details are available on the Safer Federal Workforce website. On August 18, 2021, the President announced that the Department of Health and Human Services will issue regulations requiring nursing homes to mandate vaccines for their workers as a condition of participating in Medicare and Medicaid.
Arizona: On August 16, 2021, Governor Doug Ducey issued an executive order prohibiting local governments from requiring workers to be vaccinated and imposing penalties if they do so. The executive order is consistent with a new state statute, ARS 36-681, created by Arizona Laws Chapter 409 (2021), which took effect on June 30, 2021. However, a related statute, ARS 36-682, allows licensed health care institutions to require their workers to be vaccinated. There are no statewide vaccination requirements in Arizona or restrictions on employers’ ability to impose such mandates.
California: On August 5, 2021, California’s Department of Public Health (CDPH) issued an order entitled Health Care Worker Vaccine Requirement. Workers in health care facilities must receive their final dose of the COVID-19 vaccine by September 30, 2021, unless they sign a declination form stating that a religious belief or a medical condition prevents them from becoming vaccinated. Employees claiming a medical exemption must provide written verification from a licensed medical professional. Unvaccinated employees who qualify for an exemption must undergo a PCR or antigen test for COVID-19 at least weekly (twice weekly for workers in acute health care and long-term care settings). The definitions of health care facilities and covered workers are quite broad, so review the lists provided in the order and also check out the related FAQs. The August 5 order builds on another health care worker order, issued July 26, 2021, which provides details on acceptable documentation of vaccination status. In addition, on August 11, 2021, CDPH issued an order requiring K-12 school employees (including those in private schools) to be vaccinated or submit to weekly testing.
Idaho: The state of Idaho doesn’t have any vaccine mandates or restrictions on businesses’ ability to require vaccines.
Montana: As previously reported and reported elsewhere in today’s newsletter, Montana employers are subject to a new law, HB 702 (2021), which prohibits them from discriminating against workers on the basis of vaccination status.
Oregon: Today, August 19, 2021, Governor Kate Brown announced that workers in health care settings must be fully vaccinated by October 18, 2021, or six weeks after full FDA approval of the COVID-19 vaccines, whichever is later. Her announcement states that this requirement also applies to workers in K-12 schools. On August 4, 2021, the governor had directed the Oregon Health Authority (OHA) to issue regulations requiring workers in health care settings to be vaccinated against COVID-19 or submit to weekly testing. The governor’s August 19 announcement eliminates the option to undergo testing instead of becoming vaccinated. In response to the August 4 order, OHA had issued temporary rules requiring health care providers to come into compliance (by regularly testing any unvaccinated workers) by September 30, 2021. It’s possible that the September 30 deadline will remain intact but will be supplemented by the new requirement to be fully vaccinated by October 18 or six weeks after full FDA approval of the vaccines, whichever is later. Vigilant will keep members informed on the OHA’s anticipated overhaul of its temporary rules.
Health care settings are broadly defined under OHA’s rules and include nursing facilities, assisted living facilities, adult foster homes, and residential facilities. Covered workers include anyone who has the potential for direct or indirect exposure to patients, residents, or infectious materials; examples in the rules cover a broad range of activities such as clerical, security, administrative, and billing services. Oregon has a state statute, on the books since 1989, that prohibits health care employers from imposing vaccination requirements on their workers (see ORS 433.416(3) and ORS 433.407(3)). By offering testing as an alternative to vaccination, OHA’s current rule skirts this prohibition. It’s unclear how the governor’s latest order is able to overcome Oregon’s statutory prohibition against requiring vaccinations for health care workers. The governor has stated she intends to ask the state legislature to revisit Oregon’s anti-vaccination law for health care providers during the 2022 legislative session.
Washington: On August 9, 2021, Governor Jay Inslee announced that workers in private sector health care and long-term care settings (as well as state employees) must be fully vaccinated against COVID-19 by October 18, 2021. Exemptions are available for religious and medical reasons, although employers may impose additional safety requirements on these unvaccinated workers. For disability accommodations, employers must require medical documentation. For religious accommodations, employers must document the employee’s request, including “a statement regarding the way in which the requirements of this order conflict with the religious observance, practice, or belief of the individual.” More information is available in the governor’s Proclamation 21-14 and related FAQs as well as the Washington Department of Health’s COVID-19 Vaccination Requirement (Proclamation 21-14) for health care providers, workers and settingsIn addition, on August 18, 2021, the governor announced that employees working in K-12 schools (including private schools), higher education, and childcare/early learning facilities must be fully vaccinated.
Tips: In states that permit local vaccine mandates, you should monitor local news sources to ensure you’re on top of any special requirements in your area. Federal contractors should also be aware that the White House’s July 29, 2021, press release about vaccine requirements for onsite contractors included a statement that the President has directed his staff to work on rolling out similar requirements for all federal contractors. Vigilant will keep members informed of any developments. If you’re considering mandating vaccines (outside of Montana), contact your Vigilant Law Group employment attorney for guidance.