On August 5, 2021, California’s Department of Public Health mandated that all healthcare workers in California must be fully vaccinated against COVID-19 by September 30, 2021. This mandate applies to healthcare workers employed in hospitals, skilled nursing facilities, clinics, doctor’s offices, hospice facilities, and dialysis centers, among others.
Under California’s current laws, specifically the Health and Safety Code, this mandate is legally enforceable. California relies on the same sets of Health and Safety Codes which they previously relied on to issue the Shelter-in-Place orders throughout 2020 and 2021. See, e.g., Health and Safety Codes §§ 120125, 120140, 120175, 120195, 13080.
California Health and Safety Code § 120150 provides the Department of Public Health with the authority to issue a quarantine order, such as the Shelter-in-Place orders, when it is necessary for the protection of the public health from a contagious, infectious, or communicable disease. This statute is one of the central reasons why lawsuits against the Shelter-in-Place orders were defeated.
With regard to the August 5, 2021 mandate, a lesser-known provision, California Health and Safety Code § 120140, provides the Department of Public Health with the authority to “take possession or control of the body of any living person.” Understandably, this statute has not been utilized a great deal, but the usage of this statute dates back to 1925, when an individual was required to be quarantined to avoid the spread of an infectious disease. Since then, California courts have regularly held this statute to be legal when dealing with quarantined individuals and infectious diseases.
As written, the statute appears to provide unlimited authority to the Department of Public Health. However, an examination of the case law reveals that courts have required a showing of facts giving rise to reasonable or probable cause that the actions of the Department of Public Health are justified; mere suspicion is not enough.
Moreover, Health and Safety Code § 120175 places the onus on any health officer to take measures “as may be necessary to prevent the spread of the disease or occurrence of additional cases.” Section 120175’s inclusion of the phrase “shall take measures” demonstrates a clear legislative intent, which will make it difficult for a litigant to argue that the law is unconstitutional, or being utilized in a way not intended by the California legislature.
At the end of the day, these Health and Safety codes are not new regulations that have been promulgated as a result of COVID-19, but rather are regulations that have been in place for decades and are intended to stop the spread of harmful and deadly viruses that may affect communities at large. Courts have regularly held these statutes to be lawful, and as such, California’s August 5, 2021 mandate is likely to be held to be lawful as well.
A healthcare worker may claim exemptions under the mandate under two separate grounds. First, a worker may decline to become vaccinated based on bona fide religious beliefs. Second, a worker may claim an exemption due to “Qualifying Medical Reasons,” meaning documented medical conditions that prevent them from receiving a COVID-19 vaccine. However, simply asserting one of these grounds is not enough to qualify for an exemption. Rather, your employer must make a determination regarding whether you qualify for the exemption.
If a healthcare worker qualifies for either of these exemptions, they will still be required to take regular COVID-19 tests and will also be required to wear a surgical mask or higher-level respirator approved by the NIOSH while at work.
At this time, DLG is not accepting new cases relating to vaccine mandates, though we hope that the information above is helpful.
Michael Fleming is an associate who handles employment litigation and counseling at Dhillon Law Group Inc.
