COVID-19 UPDATE #176
August 10, 2021
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GOVERNOR'S PROCLAMATION PROVIDES ADDITIONAL DETAILS OF VACCINATION MANDATE |
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Late last night Governor Inslee issued his Proclamation mandating COVID-19 vaccination for state workers and Health Care Providers. The Proclamation prohibits any “Health Care Provider” from failing to be vaccinated after October 18, 2021, and it prohibits operators of “Health Care Settings” from permitting Health Care Providers to engage in work at the setting after October 18, 2021, if the Health Care Provider has not been fully vaccinated.
Important provisions and definitions of the Proclamation are outlined below. Essentially, the Proclamation requires all Health Care Providers, long term care workers (unless specifically excluded), and “workers” in any Health Care Setting to be fully vaccinated against COVID-19 by October 18, 2021. In addition, operators of Health Care Settings (including SNFs and ALFs) are prohibited from permitting Health Care Providers and/or other workers from working after October 18, 2021, if the individuals are not vaccinated.
Tomorrow morning we have a meeting with the Governor’s office to further discuss the Proclamation and its enforcement. At that meeting, we will continue to address our concerns with the Proclamation’s impact on staffing. In addition, we hope to get an understanding as to whether individuals who refuse vaccination and lose their jobs will be entitled to unemployment insurance.
In an accompanying article in this current COVID-19 Update, we briefly describe how accommodation of medical conditions and religious beliefs might be approached.
The following terms and definitions are important for understanding the Governor’s Proclamation.
The term “Health Care Provider” includes:
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Individuals with credentials listed in the Healthcare Professional Credentialing Requirements list, including RNs, LPNs, nursing assistants, home care aides working in facilities, and nursing home administrators;
- Individuals who are permitted by law to provide health care services in a professional capacity without holding a credential;
- Long term care workers unless specifically excluded in this order; and
- Workers in any Health Care Setting.
The term “worker” includes:
- A person engaged to work as an employee, independent contractor, service provider, volunteer, or through any other formal or informal agreement to provide goods or services, whether compensated or uncompensated, but does not include a visitor or patron.
The following limited exception applies to the definition of worker:
- Independent contractors and any of their workers are exempt unless any provision of their contract to provide goods and services requires work to be performed in person and onsite, regardless of frequency, whether or not other workers are present.
The term “Health Care Provider” does not include:
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Individual providers, as defined in RCW 74.39A.240;
- Providers of personal care in a person’s home, such as home care, home health or hospice care;
- Providers who are not actively practicing or providing services; and
- Providers who provide services only at one or more of the settings that are expressly excluded from the list of Health Care Settings under this order.
The term “Health Care Setting” is any public or private setting that is primarily used for the delivery of in-person health care services, including, but not limited to:
- Hospitals;
- Long-term acute care facilities; and residential long term care facilities, including, but not limited to, nursing homes, assisted living facilities, and adult family homes;
- Outpatient facilities, including physician’s offices, dialysis centers, and behavioral health facilities;
- Urgent Care Centers; and
- Dental offices.
The term “Health Care Setting” does not include:
- Settings where sports and spectator events or other gatherings are held other than areas primarily used for the delivery of health care services, such as designated first aid areas (which are Health Care Settings);
- Licensed foster homes that do not primarily provide health care services;
- Veterinary health care settings;
- Animal control agencies; and
- Non-profit humane societies.
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RELIGIOUS AND MEDICAL ACCOMMODATIONS TO VACCINATION REQUIREMENTS PROMISE TO KEEP EMPLOYMENT LAWYERS BUSY |
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Governor Inslee’s recent Proclamation requiring mandatory vaccination of all Health Care Providers and workers acknowledged that nothing in the Proclamation precludes employers from providing disability-related reasonable accommodations and religious accommodations to the requirements of the Governor’s Proclamation as required by other applicable laws.
With respect to disability-related reasonable accommodations, the Proclamation states that “to the extent permitted by law” employers must obtain from the individual requesting the disability-related reasonable accommodation documentation from an appropriate health or rehabilitation professional authorized to practice in the state of Washington stating that the individual has a disability that necessitates an accommodation and the probable duration of the need for the disability-related accommodation.
With respect to the sincerely held religious belief reasonable accommodations, the Proclamation states that “to the extent permitted by law” employers must document that the request for the accommodation has been made and the document must include a statement regarding the way in which the requirements of the Governor’s Proclamation conflict with the religious observance, practice, or belief of the individual.
If an employee states that they have a medical condition or disability that prevents them from getting the vaccine (or makes it inadvisable for them to do so), this will start the “interactive process” with which employers should be familiar. In other words, employers should follow the same rules and guidance they already have in place for other disability-related reasonable accommodation requests from employees. The process can take time and is littered with pitfalls and land mines. Providers should work with their human resources professional or employment lawyers as they work their way through the process.
While many employers have familiarity with the disability-related reasonable accommodation process, fewer employers have ever had to deal with issues of “religious accommodation.” For that reason, WHCA has requested further guidance from the Governor’s Office and the Office of the Attorney General on how to best approach issues of religious accommodation. If such further guidance is not quickly forthcoming, WHCA will engage its law firm to provide guidance for members prior to the October 18, 2021, deadline.
In the meantime, we caution employers not to make any promises or put any set rules in place just yet regarding religious accommodations. However, members will likely need to develop and implement a process now for starting the intake for any religious accommodation requests in their workplace. We would ask employers at this point to (1) put together the protocols for gathering the requests for religious (and medical) accommodations (if they do not already have them in place); (2) advise employees of that process and let them know that the employer will be following the vaccination mandate and any guidance from the Governor’s Office or the Office of the Attorney General and engaging in the interactive process with any employees who wish to request an accommodation; and (3) not take any definitive actions just yet on any requests as we wait for further guidance.
In the weeks ahead, we will be working with our law firm and providing you additional guidance on the disability-related reasonable accommodation process and the sincerely held religious beliefs accommodation process as they relate to the vaccination mandate. If you have any questions, please do not hesitate to contact Robin Dale, Elena Madrid and Vicki McNealley.
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DSHS REQUESTS PARTICIPATION IN COVID-19 VACCINATION SURVEY |
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Washington Department of Health requests your participation in The COVID-19 Vaccination Survey for assisted living facilities and adult family homes. A short 2-minute monthly survey, the information you provide will be used to understand how vaccination rates fluctuate with staffing and resident movement, and to improve support for COVID-19 vaccination when barriers are identified.
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WHCA continues to post resources and information as it becomes available on our website. If you have questions or need additional information, please call the WHCA office at (800) 562-6170.
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