California Requires Workers in K-12 Schools Be Vaccinated or Regularly Tested

As COVID-19 cases continue to rise, Governor Gavin Newsom and the California Department of Public Health (“DPH”) have announced new measures to help prevent the further spread of COVID-19 in K-12 schools and to support the successful return to full in-person instruction for the 2021-2022 school year. Under the Order of the Health Officer issued by DPH on Wednesday, August 11, 2021, California K-12 schools must verify the vaccination status of all eligible K-12 workers. All workers who are unvaccinated will be subject to weekly COVID-19 testing. Additionally, weekly COVID-19 testing will be required for any workers who are not fully vaccinated, or for whom vaccine status is unknown or documentation is not provided.

The order applies to both public and private schools serving students in transitional kindergarten through grade 12, inclusive. It does not, however, apply to home schools, child care or higher education. Under the order, “worker” is defined to include all paid and unpaid adults serving in the covered K-12 school settings. Accordingly, the order applies to both certificated and classified staff in K-12 public schools, as well as volunteers who are on-site at a school campus supporting school functions. The order takes effect on August 12, 2021, but K-12 schools have until October 15, 2021, to be in full compliance.

Vaccine Verification Requirement

All K-12 schools covered by the order are required to verify the vaccine status of all workers. The order identifies the following as acceptable forms of proof of vaccination:

1. COVID-19 Vaccination Record Card (issued by the Department of Health and Human Services Centers for Disease Control & Prevention or WHO Yellow Card) which includes name of person vaccinated, type of vaccine provided and date last dose administered); or
2. a photo of a Vaccination Record Card as a separate document; or
3. a photo of the client’s Vaccination Record Card stored on a phone or electronic device; or
4. documentation of COVID-19 vaccination from a health care provider; or
5. digital record that includes a QR code that when scanned by a SMART Health Card reader displays to the reader client name, date of birth, vaccine dates and vaccine type; or
6. documentation of vaccination from other contracted employers who follow these vaccination records guidelines and standards.

According to the order, schools must have a plan for tracking worker vaccination status, and upon request, vaccination records must be made available to the local health jurisdiction for purposes of case investigation.

Any school workers who are not fully vaccinated, or for whom vaccine status is unknown or documentation is not provided, will be considered unvaccinated. For the purposes of the order, the following definitions apply:

1. “Fully vaccinated” means individuals who are considered fully vaccinated for COVID-19: two weeks or more after they have received the second dose in a 2-dose series (Pfizer-BioNTech or Moderna or vaccine authorized by the World Health Organization), or two weeks or more after they have received a single-dose vaccine (Johnson and Johnson [J&J]/Janssen).
2. “Incompletely vaccinated” means persons who have received at least one dose of COVID-19 vaccine but do not meet the definition of fully vaccinated.

Testing Requirements

Asymptomatic unvaccinated or incompletely vaccinated workers are required to undergo diagnostic screening testing. Unvaccinated or incompletely vaccinated workers must be tested at least once weekly with either PCR testing or antigen testing.

Unvaccinated or incompletely vaccinated workers must also observe all other infection control requirements. Unvaccinated or incompletely vaccinated workers with an underlying medical reason preventing vaccination will still be required to test weekly, as will workers with a previous history of COVID-19 from which they recovered more than 90 days earlier, or a previous positive antibody test for COVID-19.

DPH advises that schools should have a plan in place for tracking test results and conducting workplace contact tracing and must report results to local public health departments.

Costs Associated with Vaccination Verification and Testing

The order specifically states that schools may use funds received from multiple sources to cover costs associated with the new COVID-19 vaccination verification and testing requirements. Such funding sources include Elementary and Secondary School Emergency Relief Fund (ESSER) I, II, and III; Governor’s Emergency Education Relief Fund (GEER) I and II; and In-Person Instruction Grants (AB 86). The DPH also provides access to subsidized COVID-19 testing for schools through specified partners.

As K-12 schools reopen for the fall semester, school administrators must work quickly to develop plans for complying with these new state vaccination verification and testing requirements and should engage with their labor partners to help ensure smooth implementation of these requirements. OMLO attorneys can help answer any questions regarding how schools will be required to comply with this new order. Additional information can also be found on the California Department of Public Health website.

OMLO will continue to monitor these developments carefully. This article is for informational purposes only and only provides an overview of specific developments. It is not intended to be, and should not be construed as, legal advice for any particular fact situation. For actual legal advice and specifics pertaining to your governmental entity, please contact your OMLO attorney for assistance.