On August 30, 2021, the Colorado Board of Health (the “Board”) adopted an emergency rule, 6 CCR 1101-1, Chapter 2 Part 12, mandating that all employees, direct contractors, and support staff (“covered employees”) in licensed healthcare settings in Colorado receive their first dose of the COVID-19 vaccine by September 30, 2021 and be fully vaccinated no later than October 31. All covered employees are also required to obtain a subsequent, or booster, dose of the COVID-19 vaccination should one be recommended by the Advisory Committee on Immunizations Practices within the CDC.

The rule also requires healthcare facilities to hire only fully vaccinated workers after October 31.

Why did Colorado issue this vaccine mandate?

The mandate is the result of a letter Governor Jared Polis sent to the Board of Health on August 17, 2021 requesting that it immediately consider a COVID-19 vaccine mandate for all individuals “involved in health care and support staff who regularly come into contact and share spaces with vulnerable populations including patients seeking medical care in essential medical settings and in congregate senior living facilities.” The Colorado Board of Health responded to the letter on August 19, 2021, noting that it did not have jurisdiction over all medical settings in Colorado, but that it would consider an emergency rule mandating the COVID-19 vaccine for all employees under its authority.

At an emergency rulemaking meeting on August 30, 2021, the Board recognized that approximately 30% of the healthcare workforce in facilities under its jurisdiction remained unvaccinated for COVID-19. Using prior Board rules mandating the flu vaccine as a “baseline” for the emergency regulations, the Board found that “[w]ith the rise in the Delta variant, ensuring that all workers in licensed healthcare facilities are vaccinated is one of the most effective means the state can take to protect public health, safety, and welfare of all Coloradans . . . .”

Who is Covered by the Vaccine Requirement?

The vaccine requirement applies to employees at the following healthcare 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)
• Nursing homes

Employees, direct contractors and support staff of these facilities are required to comply with the vaccine mandate if they have “potential for exposure to clients of the facility or agency and/or to infectious materials, including bodily substances, contaminated medical supplies and equipment, contaminated environmental surfaces, or contaminated air.” This would include individuals like licensed independent practitioners, students and trainees, visiting nursing staff, and the like.

The mandate does not apply to individual health care practitioners or staff, or settings where patients seek medical care including primary care offices and urgent care locations. The Board does not have jurisdiction over such facilities.

What specific measures must facilities covered by this mandate institute?

The vaccine mandate imposes a number of new obligations on covered entities.

First, covered entities are required to develop and implement a policy and procedure that complies with the rule. In addition to mandating that all covered employees and new hires be fully vaccinated for COVID-19 by the dates set forth above, this document must include, at minimum: (1) the categories or position descriptions of individuals exempt from the rule, including justification for that decision; (2) the employer’s criteria for accepting or rejecting medical or religious exemptions; (3) measures taken by the employer to protect clients and members of the public from exposure by unvaccinated individuals; and (4) how the employer will implement testing and masking for unvaccinated individuals.

Second, covered entities must maintain records of proof of employees’ immunization, as well as documentation stating if an employee is exempt from the vaccine mandate due to a qualifying medical or religious exemption. The rule specifically defines what kind of documentation would qualify an employee for a medical exemption; it requires that a medical exemption request must be signed by a physician, physician assistant, advanced practice nurse, or certified nurse midwife licensed in the State of Colorado and state that the COVID-19 vaccination is medically contraindicated as described in product labeling approved or authorized by the FDA.

Third, beginning October 1, each facility or agency must report its COVID-19 vaccination rate to the Board on the 1^st and 15^th day of each month. Information reported to the Board under the rule’s reporting obligation will be made publicly available on the Board’s website.

Has Colorado enacted other vaccine mandates?

At this time, the City and County of Denver is requiring private-sector workers in “high-risk” settings along with the city government’s 10,000-plus employees to be vaccinated against COVID-19 by September 30. Denver’s mandate applies to all employees working in hospitals, clinical settings and nursing homes, as well as to employees working in homeless shelters, correctional facilities, childcare centers, schools and post-secondary institutions, and any entity providing home care to patients or first responder services. Thus, many healthcare workers in Denver are now subject to dual vaccine mandates, under both Denver’s public health order and the Board’s new vaccine mandate.

The Colorado state government is also requiring all state employees to either get vaccinated by September 20 or undergo twice-weekly COVID-19 tests. Unlike Denver’s vaccine mandate, the Colorado state government mandate does not apply to private-sector employees.

What does this mean for Colorado employers?

Employers covered by the mandate should closely monitor covid19.colorado.gov for any additional guidance to ensure compliance with the mandate and avoid potential consequences. The Board has already signaled that it may revise the emergency rule, and a second rulemaking session is scheduled for October to consider changes to the rule in a regular session. Still, employers in the healthcare sector in Colorado need to begin plans to comply with Colorado’s vaccine mandate now.