Licensing Update

As of January 29, 2021, California had 3,272,349 confirmed C-19 cases, up over one million cases from a month ago, resulting in 39,257 deaths, or 1.1%. Despite the increase in cases and deaths, Governor Gavin Newsom announced an easing of the stay-at-home orders. Johnson & Johnson has a one-dose vaccine pending FDA approval, but the overall effectiveness is much lower than the Pfizer and Moderna vaccines. Los Angeles County, according to CNN, is the current epicenter of C-19 with 1,098,363 confirmed cases and a death rate of 1.5%. New York State has 1,387,059 cases with 42,639 deaths or 3%, double California’s rate. Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, stated the new virus variant does not respond to the current vaccines. “[We need] to be able to adjust as this virus will continue for certain to evolve and mutate” he said at a recent conference.

According to CalOSHA, as stated in PIN 21-06-ASC, the supplies of N95 masks are adequate and there is no longer a requirement to “decontaminate” supplies. Actually, just days before this declaration, the New York Times reported the decontamination process was a failure, and care providers were actually spreading contaminates to patients. The National Nurses United union told the Food and Drug Administration the process did not work, but the FDA continued to push the decontamination process as late as mid-January 2021. The nurses’ union also claims there is a mask shortage, not “adequate supplies” as CalOSHA has claimed. DSS reversed PIN 20-20-ASC (June 2, 2020) that encouraged facilities to use the Battelle Critical Care Decontamination System. PIN 21 06-ASC states, facilities are “no longer permitted for use by Community Care Licensing Division (CCLD) licensed providers.” That’s pretty strong language! Not permitted because adequate supplies exist or some other reason?

Another PIN, released January 11, informs facilities of a new Health & Safety Code, 1569.4, requiring DSS to begin surveying facilities and collecting data on whether facilities accept SSI-federal payments, accept residents with “serious mental disorders,” the total number of “licensed beds” per facility, and then if the facility is closed or closing—why? The survey will begin May 1. The state is concerned because it closed most of the mental hospitals and wants to put those persons in your facility. Can DSS force you to disclose why you closed? No, but your answers could be beneficial for future legislation or revoking existing laws and regulations.

A new COVID-19 reporting law took effect January 1 requiring all California employers to report, within one business day, if there is a COVID-19 exposure in the workplace and provide notice to local public health departments for COVID-19 outbreaks. The Law Firm of Fisher Phillips stated the bill, AB 685, used vague language, and may result in “shaming” employers and cause a shutdown of businesses. Notices of an exposure must be sent to public health officials or a licensed medical provider, employees or their “exclusive representative,” and to any “subcontracted employer and employees.” Notice is required because an employee or “qualifying individual” had a positive lab test for C-19, has a C-19 diagnosis, is in ordered isolation, or has died of C-19. Plus, notice must be provided to anyone “who may have been exposed” and include possible employee “benefits” i.e., workers’ compensation and sick leave, and include protections against employer discrimination and retaliation. Employers must also tell all employees its disinfection and safety plan to be implemented. Health facilities are exempt from this notification, but residential care facilities are NOT “health facilities” as defined in Health and Safety Code 1250. The state’s department of public health must publish the name of the employer disclosing the number of persons infected at the employer’s place of business. Fisher Phillips sees this requirement as particularly troubling as it specifically provides that Cal/OSHA can prohibit operations where a worksite exposes employees to COVID-19 so as to constitute an imminent hazard. By the time a positive case is reported to the employer, reported to the local public health department, and then reported to the state and published on the state website, one or two weeks may have passed. During that time, the infected employee is likely to have already received treatment and the workplace will already have been cleaned and disinfected. However, the public and customers may see this information and incorrectly assume that there is a current hazard at the business. The law terminates on January 1, 2023.