By: Richard A. Davis III and Matt T. Paxton
On August 9, 2021, Governor Jay Inslee issued Proclamation 21-14 requiring state employees and health care and long-term care providers to be fully vaccinated by October 18, 2021.
Proclamation 21-14 applies to all workers for state agencies and most health care providers working or volunteering for fire districts, RFAs, and public hospital districts, including EMTs, paramedics, and, arguably, community resource paramedics. Proclamation 21-14 would also apply to individuals employed from Washington State Patrol or the Department of Natural Resources for mobilization purposes. However, Proclamation 21-14 does not apply to commissioners, administrative staff, or other non-health care provider employed by or volunteering for a special purpose district.
Proclamation 21-14 specifically prohibits any “Health Care Provider” from failing to be fully vaccinated, and prohibits any entity that operates a “Health Care Setting” from permitting a Health Care Provider to engage in work unless he or she has been fully vaccinated.
- “Health Care Provider” includes individuals with DOH credentials (such as EMTs and paramedics), individuals permitted by law to provide health care services in a professional capacity without holding credentials and other workers in a Health Care Setting, regardless of whether they are compensated or uncompensated.
- “Health Care Setting” includes any public or private setting that is primarily used for the delivery of in-person health care services, and it includes “mobile clinics or other vehicles where health care is delivered.”
There are certain exclusions under Proclamation 21-14, but none of those exclusions appear to apply to health care providers at fire districts, RFAs, and public hospital districts.
Gov. Inslee’s press releases and other informational materials have been inconsistent with the Proclamation as they have suggested that as to whether Proclamation 21-14 applies to health care settings outside of the private sector. For example, in the FAQs of one press release, Gov. Inslee states that Proclamation 21-14 applies to “State employees and workers in private health care and long-term care settings…” But, in a different press release, Gov. Inslee indicates that Proclamation 21-14 applies to “most state executive branch employees and on-site contractors and volunteers, along with public and private health care and long-term care workers.” Because press releases and FAQs are not legally binding, we recommend complying with Proclamation 21-14 as written. Violations of the Proclamation can carry criminal penalties.
To prove full vaccination, Proclamation 21-14 requires that employees and volunteers provide (1) a CDC vaccination record card or photo of the card, (2) documentation of vaccination from a health care provider or electronic health record, or (3) state immunization information system record. Personal attestation forms are no longer acceptable. Employers who have accepted attestation forms for the purpose of the mask mandate will need to collect additional proof of vaccination before October 18, 2021.
In complying with Proclamation 21-14, fire districts, RFAs, and public hospital districts must engage in a flexible, interactive process to identify accommodations options for employees who are unable to receive a vaccination due to a disability or sincerely held religious belief. Such an accommodation should (1) eliminate or reduce the risk of exposure so that the unvaccinated individual does not pose a direct threat, and (2) not constitute an undue hardship for the employer. If the employee or volunteer is entitled to a reasonable accommodation due to a disability or sincerely held religious belief and appropriate documentation must be provided, he or she is exempt from the mandatory vaccination requirement of Proclamation 21-14.
In regards to workers who are covered by a collective bargaining agreement, the issue of whether mandatory vaccinations is a mandatory subject of bargaining remains an open question. Neither the NLRB nor PERC has definitively answered the question to date. PERC generally finds that management decisions that impact safety to be a mandatory subject of bargaining. However, since the Governor’s Proclamation is a legal requirement, violations of which can subject an agency to criminal penalties, it would appear that agencies may not have to bargain the decision on the grounds that the Proclamation constitutes a legal necessity. Additionally, certain management rights clauses may be specific enough to avoid bargaining the decision to implement mandatory vaccinations. Regardless of whether the decision needs to be bargained, bargaining will still be required regarding the impacts and effects of the decision.