Other states – namely, New York – announced earlier in July that state employees, including patient-facing employees in state-run health care facilities, will be required to get vaccinated for COVID-19 or else will be required to be tested for COVID-19 on a weekly basis after Labor Day. This announcement came shortly after the federal government’s announcement that all federal employees would similarly be required to get vaccinated or be subjected to weekly tests and other safety measures.
On August 5, California became the first state to expand this vaccine mandate to all health care workers, as opposed to only health care workers employed by the state. Citing the rising rates of COVID-19 infection due to the Delta variant, California ordered all workers who provide services for or work in health care facilities to receive the final dose of their COVID-19 vaccine regimen by September 30, 2021. Employees are permitted exemptions for religious or medical reasons, though the latter requires employees to produce a note from a health care provider. Health care facilities with exempt employees must require these employees to wear a mask at all times in the facility and to continue COVID-19 testing once or twice weekly, depending on the type of care setting. Unlike the prior rules, employees must be exempted from the vaccination requirement in order to undergo screening instead; facilities that permit employees to undergo screening absent a basis for exemption would be in violation of the order.
On August 4, Oregon Governor Kate Brown announced that the state would also require health care workers to be vaccinated. Pursuant to this announcement, on August 9, the Oregon Health Authority adopted temporary rules requiring all workers in health care facilities to be vaccinated by September 30, 2021. While the rules originally allowed facilities to require either vaccination or weekly testing, two weeks later, Governor Brown then announced on August 19 that Oregon would eliminate the weekly testing option and instead required all health care workers be vaccinated by October 18 (or six weeks after FDA approval of the vaccine). Noncompliant employers could be fined US$500 per day per violation.
Similarly, on August 9, Washington announced that state employees and workers in private health care and long-term care settings have until October 18 to get fully vaccinated. While broader than California’s order insofar as it also applies to state employees, like California, this requirement will be a condition of employment, meaning that non-vaccinated employees will face “non-disciplinary dismissal” for failure to meet job requirements. Of course, employees may be exempted for religious or medical reasons, but there “may be” additional safety requirements for such individuals.
With so many states so quickly following the lead of the federal government’s requirements for its workers – and, indeed, expanding and strengthening those requirements – these developments constitute a national trend that will be important for employers to watch. States are not in agreement with which employees these policies should cover and how strict the policies should be, so the trend is particularly important to watch closely.
For more information about how this trend could impact your organization, please contact one of the authors of this post or the Hogan Lovells lawyer with whom you work.
Authored by Tao Leung and Heather McAdams.
