California and Washington Issue Vaccine Mandates — Frontrunners in What Appears to Be a Growing Trend

Update: On August 18, 2021, Washington Governor Jay Inslee expanded his state’s vaccine mandate to include all education staff, faculty, and on-site contractors.  The mandate extends to employees working in K–12 settings, most childcare and early learning, and higher education.  While details are still emerging, workers falling under this expanded coverage will have until October 18, 2021 to be fully vaccinated as a condition of employment, like state employees and on-site contractors.  Also like state employees, there will be no test-out option.  At the same time he issued the expanded vaccine mandate, Governor Inslee reinstated Washington’s statewide mask mandate, requiring masks in all indoor settings open to the public, regardless of vaccination status.

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On July 26, 2021, California Governor Gavin Newsom announced that his state will require all state employees and healthcare workers to provide proof of vaccination or be subject to regular COVID-19 testing. On August 5, 2021, the California Department of Public Health issued a public health order implementing the governor’s prior proclamation as it relates to healthcare workers in the state. This first-in-the-nation set of orders has since been followed by several state and local health officials, including Washington Governor Jay Inslee, who on August 9, 2021 announced his state’s mandate (Proclamation 21-14), which looks similar to California’s.  Unlike California, however, Washington will not permit regular testing in lieu of vaccination; covered workers who cannot prove they are fully vaccinated by October 18, 2021, will be subject to non-disciplinary dismissal.

Although these orders appear to be limited in scope, private employers, including those outside the healthcare setting, may be impacted to the extent they contract with state agencies for on-site work.

Vaccination Mandates

Coverage under the California Order

In California, state employees are subject to the vaccination requirement under the governor’s July 26th announcement. While no actual policy has yet been published, the requirement does not appear to impact employers that merely contract with the state. The mandate for California state employees became effective on August 2, 2021, and includes a phased-in approach mandating at least weekly testing for covered workers who are unvaccinated.

The California Department of Public Health order dated August 5, 2021, applies to all workers who provide services or work in healthcare facilities, which includes: 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; and residential substance use treatment and mental health treatment facilities.

Covered workers include 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. Such workers include, but are not limited to, nurses, nursing assistants, physicians, technicians, therapists, phlebotomists, pharmacists, students and trainees, contractual staff not employed by the healthcare facility, and persons not directly involved in patient care, but who could be exposed to infectious agents that can be transmitted in the healthcare setting (e.g., clerical, dietary, environmental services, laundry, security, engineering and facilities management, administrative, billing, and volunteer personnel).

Employers must be in compliance by September 30, 2021. CAUTION TO PRIVATE AND NON-HEALTHCARE EMPLOYERS: this may apply to your employees if they fall under the general catch-all provision, which may apply if they conduct work that could expose them to infectious agents that can be transmitted in the healthcare setting.

Coverage under the Washington Proclamation

Proclamation 21-14 mandates general vaccination in two major sectors.  First, it requires all state “workers,” defined to include employees, contractors, vendors, and appointees, be fully vaccinated by October 18, 2021. Covered contractors include all those performing work for state agency on site and in person, “regardless of frequency, whether other workers are present, or any contingent nature of that requirement.” Nothing in the Proclamation distinguishes between indoor and outdoor on-site workforces and, presumably, both are covered.

Second, the Proclamation requires all healthcare providers, or employees, contractors, or volunteers of healthcare operators, to be vaccinated by that same date.

These obligations do not fall only on the employee, contractor, vendor, or appointee. State agencies, healthcare operators, or contractors performing work on state work sites cannot allow such individuals to work after October 18, 2021, if they are not fully vaccinated.

Covered individuals must also provide proof of their vaccination to the relevant agency or healthcare operator, which may include a CDC vaccination card, healthcare provider documentation, electronic health record, or state immunization information system record. Personal attestation is not enough.

Those who violate the Proclamation may be found guilty of a gross misdemeanor. The Proclamation takes effect immediately.

Disability and Religious Exemptions

Under both states’ orders, individuals may be entitled to a disability or religious exemption from the mandate to the extent they are protected under federal and state non-discrimination law, and so long as offering such an exemption does not cause an undue hardship to the individual’s employer. In California, employees must provide a written declination form that states that the employee is requesting an exemption based on religious or medical grounds. A medical request must be signed by a licensed medical professional.

The Washington Proclamation goes further, requiring that state agencies and healthcare operators receive supporting documentation from an authorized healthcare professional before providing a disability accommodation, and documenting the appropriate religious basis before providing a religious accommodation. Those workers who request a religious accommodation must provide a statement regarding the way in which the requirements of this order conflict with their religious observance, practice, or belief.

Categorical Exemptions

The Washington Proclamation also excludes certain narrow classes of individuals and employers from coverage, a provision not included in the California orders. These include off-site independent contractors and their workers. In the healthcare setting, it excludes certain individual healthcare providers and home healthcare workers.

Suggestions for Private Employers

Outside of public employment, the Washington Proclamation most directly impacts employers in the healthcare sector and those who contract with Washington State agencies to provide goods or services. Contractors who do not perform on-site, in-person work are generally excluded from coverage, as are individual and home healthcare providers, and in California, dentists. Contractors in Washington may wish to review their contracts with the state to determine if they will be able to satisfy contractual obligations while complying with the new vaccination mandate.

While these orders are generally limited to employees of the state and healthcare providers, private employers may be subject to these orders if they contract with or otherwise provided services at state worksites or in covered healthcare settings. Furthermore, these developments provide strong policy support for private employers considering workplace vaccination mandates.

California and Washington are not the only states implementing similar orders. Consult with an attorney in the applicable jurisdiction immediately if you believe these orders apply to your workforce or impact your operations.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.