February 2, 2017

School District Day Care Center and Preschool Staff May Have to Abide by New Vaccination Requirements

BY: Michael Cullen, Todd Goluba, Elizabeth Rho-Ng

Senate Bill 792 (“SB 792”), which went into effect on September 1, 2016, requires employees and volunteers of day care centers (including preschools) licensed by the California Department of Social Services (“CDSS”) to be vaccinated for influenza, pertussis, and measles. The author of SB 792, Senator Mendoza, captured the legislative intent of the bill in the Comments to the Senate Bill Analysis:

[C]hildren in day care settings have close, intimate contact with each other and with the staff who work there.  any of these children are too young to be fully immunized against potentially serious communicable diseases.  Children who are too young to be vaccinated rely on those around them to be immunized to prevent the spread of disease … this bill will protect children in day care by requiring those who care for them to maintain immunity.

Senator Mendoza emphasized the important nature of SB 792’s impact on day care centers on his website, stating, “Children under the age of five are one of the most vulnerable age groups for contracting infection and developing complications from these very serious diseases, so it is critical that we use all available methods to protect them.”

Although the law went into effect last fall, many school districts are still grappling with the question: Do our day care center, including preschool, staff need to adhere to these new vaccination requirements? The answer depends on whether the district day care program is licensed by CDSS, or is considered a license-exempt program and thereby exempt from such licensing requirements.

Analysis

SB 792 altered the requirements for day care centers applying for a license with CDSS.  SB 792 amended California Health and Safety Code Section 1596.7995(a)(1) to read: “a person shall not be employed or volunteer at a day care center if he or she has not been immunized against influenza, pertussis, and measles.”  Health and Safety Code Section 1596.76, which preexisted SB 792, defines a “day care center” as “any child care facility other than a family day care home, and includes infant centers, preschools, extended day care facilities, and school age childcare centers.”  Therefore, the term “day care center” clearly encompasses preschools, even those operated by districts.

“Preschools” is not further defined, which has caused some confusion for school districts over whether SB 792 applies to their preschool staff. Section 3 of SB 792, coupled with a review of its legislative history, clarifies that the bill only applies to preschools which need to “apply for a license” with CDSS in order to operate. Section 3, which amended Health and Safety Code Section 1597.54, states that day care centers applying for licensure must abide by numerous requirements. This includes ensuring that their employees and volunteers are vaccinated for measles, pertussis, and influenza. SB 792 makes no mention of license-exempt programs.

Furthermore, the legislative history of SB 792 refers to the vaccination mandate exclusively in terms of a licensing requirement. The Legislative Counsel’s Digest states:

Existing law requires an applicant for licensure as a family day care home to present evidence of a current tuberculosis clearance for any adult in the home during the time that children are under care.

This bill, commencing September 1, 2016, would prohibit a person from being employed or volunteering at a day care center or a family day care home if he or she has not been immunized against influenza, pertussis, and measles.

A fact sheet for SB 792 prepared by Senator Mendoza’s office before the bill was signed into law provides, “In total, SB 792 will protect 913,802 children in the 42,597 licensed child care facilities operating in California.” (Emphasis added).

The California Immunization Coalition, a legislative advocacy organization “dedicated to achieving and maintaining full immunization protection for all Californians” according to its website, states that “day care centers and family day care homes, as part of their licensure requirements, will have to maintain vaccination records for their employees and volunteers for influenza, pertussis, and measles.”  (Emphasis added).

Lastly, the Health Officers Association, a sponsor of SB 792, wrote in their organization’s materials regarding the process and implementation of SB 792 that the legislation does “not apply to license-exempt day care providers.”

The key to determining whether a district preschool must abide by these new vaccination requirements is reviewing whether the preschool qualifies as a license-exempt program. According to CDSS, “License-exempt child care is a child care program that can legally operate without a license, and licensing  standards do not apply to them.” CDSS lists, as an example of the “types of providers who are license-exempt,” “[p]ublic/private schools.”  Many, but not all, district-run day care centers and preschools are exempt from licensing requirements. School districts should review which day care center programs and preschools they operate are considered license-exempt.

Our day care center or preschool is licensed by CDSS, now what?

Day care centers licensed by CDSS must ensure that all employees and volunteers are immunized against influenza, pertussis, and measles, and maintain such documentation.  Employees and volunteers must receive an annual influenza inoculation between August 1 and December 1 of each year.

Employees and volunteers can be exempted from all three vaccination requirements by submitting a written statement from a licensed physician declaring that immunization is not safe due to a physical or medical circumstance, or that the person has evidence of current immunity to such diseases. To be exempted from the influenza vaccination only, the employee may simply submit a written declaration that he or she has declined the influenza vaccination. An employee or volunteer hired between December 1 of the previous year and before August 1 of the current year is exempt from the influenza vaccination requirement.  New employees or volunteers who require additional time to receive immunizations may be conditionally employed, so long as they submit a signed written statement within 30 days of employment confirming he or she ultimately received the required immunizations or submits documentation supporting an exemption. Lastly, employees are not entitled to be reimbursed for costs associated with receiving the listed vaccinations.

If you have questions about the implementation of SB 792 in your district, you should reach out to an attorney within our firm.

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Attorney Bio(s)

Michael Cullen

Michael Cullen

Associate

925-227-9200

mcullen@aalrr.com

Michael Cullen’s practice focuses on special education, Section 504, and student issues. Mr. Cullen represents school districts at IEP team meetings, resolution sessions, due process hearings, Section 504 meetings, and expulsion hearings. His tenure as an attorney included working with Disability Rights California where he handled an IEP meeting and counseled parents about special education rights and responsibilities. He also gained experience with the organization as a law clerk handling human rights and civil rights matters. He also gained extensive writing and research skills during law school through legal internships with the human-rights firm Perseus Strategies in Washington D.C., Massachusetts Advocates for Children, the U.S. Air Force, and the U.S. Attorney’s Office for the Southern District of New York.

full bio

tgoluba

Todd Goluba

Partner

925-227-9200

tgoluba@aalrr.com

Todd Goluba is a partner with AALRR’s Pleasanton office and heads the firm’s Northern California Education Law Practice Group. Mr. Goluba has over 22 years of experience in education law and serves as outside General Counsel to over 25 school districts, community college districts, and county offices of education throughout Northern and Central California. Mr. Goluba also specializes as a Chief Labor Negotiator for districts engaged in certificated and classified collective bargaining. In this role, he has guided districts through all phases of the negotiation process from at the table bargaining to impasse and fact-finding and has helped avert near strikes. He is skilled in both interest-based and traditional bargaining, with a demonstrated track record of developing enduring, collaborative, and mutually respectful relationships.

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erhong

Elizabeth Rho-Ng

Partner

925-227-9200

erho-ng@aalrr.com

Elizabeth Rho-Ng is a partner in the firm's Northern California offices. Ms. Rho-Ng represents California public school districts, county offices of education and special education local plan areas in various aspects of education law, specializing in special education and student issues. She advises clients on all matters related to serving the needs of disabled students in public schools and has extensive expertise on topics ranging from Section 504 disability discrimination complaints and student disciplinary actions to special education due process proceedings. Ms. Rho-Ng has successfully litigated special education cases in both state and federal courts and before administrative agencies.

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