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Location: CO
Title: Information on BOH Emergency Rules Mandating COVID-19 Vaccines for Healthcare Workers
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Dear NVIC Advocacy Colorado Team Members,

On August 17, 2021 Governor Polis sent a letter to the Colorado State Board of Health requesting they expedite rulemaking to require COVID-19 Vaccines for 100% of personnel working in facilities with medically vulnerable populations, and personnel in the settings where people receive essential medical care. 

The Board of Health responded on August 19, 2021 and based on discussions with the Health Facilities and Emergency Medical Services Division within the Colorado Department of Public Health and Environment, the Board set a special meeting for August 30, 2021 at 4 pm.

The Board of Health adopted emergency rules on August 30, 2021 that require 100% of employees working in health care facilities licensed by the Colorado Dept. of Public Health and Environment to be fully vaccinated for COVID-19.  The first dose is required by Sept. 30, 2021 and the second dose (if applicable) by Oct. 31, 2021.  You can read the rule in red text, beginning on page 12 here- 6 CCR 1011-1 Chapter 2, General Licensure Standards and the COVID-19 Vaccine.  In addition, 652 pages of written testimony that was submitted is posted on the Board of Health website.  The final adopted rule can be read here.

The burden of adopting policies that ensure 100% of employees, direct contractors and support staff are fully vaccinated falls on the individual facilities. The facilities are also responsible for coming up with the criteria for accepting or rejecting medical or religious exemptions and how the facility will implement testing and masking for unvaccinated individuals.

Important points to be aware of:

·        Medical exemptions must be signed by a physician, physician assistant, advanced practice nurse or certified nurse midwife licensed in Colorado stating the vaccine is contraindicated as described in the product labeling approved or authorized by the FDA.  The only fully approved COVID-19 Vaccine as of 9/9/2021 with a package insert is COMIRNATY manufactured by Pfizer-BioNTech. The only contraindication listed in the package insert is a known history of a severe allergic reaction (e.g., anaphylaxis) to any component of the COMIRNATY.  The CDC lists contraindications to COVID-19 vaccines currently in use as severe allergic reaction (e.g., anaphylaxis) after a previous dose or to a component of the COVID-19 vaccine or immediate allergic reaction of any severity to a previous dose or known (diagnosed) allergy to a component of the COVID-19 vaccine.

·        Facilities will have to request a waiver if even just one individual claims a religious exemption, (see the bottom of page 13).  In addition, facilities must report to the department twice a month, beginning on Oct. 1, 2021, the total number of employees that are vaccinated, have medical or religious exemptions and the number of employees who left employment because if this mandate. This information will be made publicly available on the department’s website.

·        These rules apply to the following facilities: Acute Treatment Units, Ambulatory Surgical Centers, Assisted Living Residences, Behavioral Health Entities, Birth Centers, Community Clinics, Community Clinics with Emergency Centers, Community Integrated Health Care Services Agencies, Community Mental Health Centers, Dialysis Treatment Clinics, Freestanding Emergency Departments, Home Care Agencies, Home Care Placement Agencies, Hospices, Hospitals (General, Rehabilitation, Psychiatric, and Hospital Units), Facilities for Individuals with Intellectual and Developmental Disabilities (Group Homes and Intermediate Care Facilities), and Nursing Homes.

·        These rules do not apply to other settings where patients seek medical care including primary care offices and urgent care locations because the department does not have authority over individual healthcare practitioners or staff, nor does it oversee other settings where patients seek medical care.  (see letter written by the Board of Health in response to Governor’s request)

·        Employees who received monoclonal antibody treatment or convalescent plasma shall obtain vaccination in a timeframe that is accordance with recommendations of the CDC, ACIP and the individual’s licensed practitioner.

·        Employers are still required to provide reasonable accommodations required by the Americans with Disabilities Act (ADA), the Rehabilitation Act, and Civil Rights Act of 1964. This includes accommodation for religious beliefs as defined in Title VII of the Civil Rights Act.  For more information see NVIC’s FAQs on employee mandates here

·        Colorado State Law 24-34-402 prohibits an employer to refuse to hire, to discharge, to promote or demote, to harass during the course of employment, or to discriminate in matters of compensation, terms, conditions, or privileges of employment against any individual, otherwise qualified because of disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, religion, age, national origin, or ancestry.  Colorado State Law CRS 25-1-517 states that nothing authorizes a county or district board of health to impose on any person any mode of treatment inconsistent with the creed or tenets of any religious denomination of which he or she is an adherent if the person complies with sanitary and quarantine laws and rule. 

         Several organizations are providing resources on exemptions and accommodations see - Resources for Employees, COVID-19 Vaccine Employer Mandates posted on the NVIC Advocacy Portal under US Announcements. 

The Denver Department of Public Health & Environment also issued an order mandating personnel working in the City and County of Denver be fully vaccinated by Sept. 30, 2021. This order states employers shall provide reasonable accommodations for any personnel who have medical or religious exemptions from the COVID-19 vaccination. You can read the full text here.

NVIC Advocacy does not support vaccine mandates.  NVIC Advocacy did support bills in the past two Colorado legislative sessions to protect the rights of employees,  SB20-84 in 2020 and HB21-1191 in 2021.  While both bills failed to pass their first committee hearings and died, the Colorado Legislature passed other bills to expand protections for other groups.  Colorado citizens and employees should also be protected from discrimination based on their vaccination status and not have mandates forced on them.

NVIC Advocacy does not provide legal advice. We do encourage you to contact your Colorado State Senator and House Member and ask them to support legislation in the next session to protect the right of all Colorado Citizens to be free from vaccine mandates and discrimination based on their vaccination status.  You can also share your thoughts with Governor Polis and the Board of Health