Connecticut Health Law

In an attempt to stem the rising tide of COVID-19 cases involving the highly contagious Delta variant, Lieutenant Governor Susan Bysiewicz, issued Executive Order (EO) No. 13B over this past weekend requiring the vaccinations of frontline workers at Connecticut’s nursing homes and other long-term care facilities and providers.

EO 13B followed on the heels of Executive Order No. 13A issued by Governor Lamont on August 5, 2021 which accelerated the effective date of a law concerning testing of nursing home staff and residents.  That Order was followed up on the next day by EO 13B that imposes vaccination requirements for staff and volunteers aiding individuals living in those same nursing homes as well as a number of other facilities, agencies and other providers serving the elderly and other medically vulnerable populations.  The specific entities covered by the vaccination requirement are nursing homes as defined in CGS §§19a-521 and 19a-490(o), chronic disease hospitals ( CGA §19a-550), residential care homes ( CGS §§19a-521 and 19a-490(c)), intermediate care facilities for persons with intellectual disabilities (42 USC 1396d(d)), managed residential communities (CGS §19a-693) and, effectively, assisted living facilities, as the requirements apply to assisted living services agencies (CGS 19a-490(l).

Specifically, EO 13B requires “direct access” staff and volunteers in these settings to be “fully vaccinated” or, in the case of recipients of a two-dose vaccine, receive their first dose no later than September 7, 2021 unless the individual is exempted for medical or religious reasons. Moreover, direct access staff or contracted individuals who fail to receive the second dose of a two-dose vaccination on the appropriate or scheduled date without good cause may not be or remain employed.

Non-compliance with EO 13B subjects a facility to a civil penalty of $20,000 per day.

In imposing the vaccine requirement, EO 13B modifies a state statute that requires a “long-term care facility” to only hire “direct access” personnel and to only have “direct access” volunteers who have undergone background checks who do not have disqualifying offenses unless waived.

EO 13B defines “direct access” as a person having physical access to a patient or resident of a long-term care facility.  EO 13B defines considers a person “fully vaccinated” if at least 14 days has elapsed since a person has received the final dose of a vaccine approved for use against COVID-19 by the U.S. Food and Drug Administration, or as otherwise defined by the Centers for Disease Control.  The EO further elaborates on the medical exemption as necessitating that an individual’s physician, physician’s assistant or advanced practice registered nurse has determined that the administration of the vaccine is likely to be detrimental to the individual’s health. The religious exemption requires an individual have an objection on the basis of a sincerely held religious belief and an ability to perform their essential job functions with a reasonable accommodation that is not an undue burden on the facility. The performance of essential job functions with a reasonable accommodation requirement likely applies to medically exempted employees, as well. Authentication of vaccination status and exemption status must be documented and maintained and compliance with EO 13B reported to DPH as directed by the Department.

As noted above, EO13A establishes a new effective date for implementing infectious disease testing of nursing home staff and residents – the new date being August 5. The Acting Department of Public Health (DPH) Commissioner may now immediately require that all unvaccinated nursing home staff statewide receive weekly testing for COVID-19. EO 13A moves up the effective date of Section 6 of PA 21-185 requiring nursing homes, during an outbreak of an infectious disease, to test staff and residents for infectious disease at a frequency determined by DPH. EO 13A, also provides that any directive, rule, guidance, or order pursuant to it is not included in the definition of a regulation pursuant to Section 4-166(16) of the Connecticut General Statutes. EO13B will remain in effect through September 30, 2021, unless earlier modified or terminated.

If you have questions or would like more information, please contact a Pullman & Comley Health Care attorney.

You may read Zachary Schurin's blog on EO13A at Working Together, Pullman & Comley's blog dedicated to labor and employment topics.