New Mexico Register / Volume XXXII,
Issue 24 / December 28, 2021
PUBLIC HEALTH ORDER
NEW MEXICO DEPARTMENT OF HEALTH
ACTING SECRETARY DAVID R. SCRASE, M.D.
December 2, 2021
Amended Public Health Emergency Order Requiring All School Workers Comply with
Certain Health Requirements and Requiring Congregate Care Facility
Workers, Hospital
Workers, and Employees of the Office of the Governor Be Fully Vaccinated
WHEREAS, on January 30, 2020, the World Health Organization announced the
emergence of a novel Coronavirus Disease 20 19 ("COVID-19") that had
not previously circulated in humans, but has been found to have adopted to
humans such that it is contagious and easily spread from one person to another
and one country to another;
WHEREAS, COVID- 19 has been confirmed in New Mexico since March 11, 2020, when
the New Mexico Department of Health confirmed the first cases of individuals
infected with COVID- 19 in New Mexico and additional cases have been confirmed
each day since then;
WHEREAS, on March 11, 2020, because of the spread of COVID-19,
Governor Michelle Lujan Grisham issued Executive Order 2020-004 declaring that
a Public Health Emergency exists in New Mexico under the Public Health
Emergency Response Act, and invoked her authority under the All Hazards
Emergency Management Act;
WHEREAS, Governor Michelle Lujan Grisham has renewed the
declaration of a Public Health Emergency through December 17, 2021;
WHEREAS, over 48 million people have been infected with COVID-19 in
the United States, with over 770,000 related deaths, and the New Mexico
Department of Health has reported 314,000 positive COVID-19 cases and 5,369
related deaths in New Mexico;
WHEREAS, the currently available COVID-19 vaccines are safe and the
most effective way of preventing infection, serious illness, and death;
WHEREAS, widespread vaccination protects New Mexico's health care
system as vaccines decrease the need for emergency services and
hospitalization;
WHEREAS, the refusal to receive the COVID-19 vaccine not only
endangers the individual but the entire community, and further jeopardizes the
progress the State has made against the pandemic by allowing the virus to
transmit more freely and mutate into more transmissible or deadly variants;
WHEREAS, one such highly transmissible variant, B.1.617.2, commonly
known as the Delta variant, now accounts for the majority of new infections in
the United States;
WHEREAS, new scientific data demonstrates waning immunity after six
months after the primary series of the Pfizer-BioNTech and Moderna vaccines and
two months after the Johnson & Johnsons Janssen vaccine, and those with a
booster vaccine have reduced risk for a breakthrough infection;
WHEREAS, New Mexico has recorded a significant increase in new
COVID-19 cases in recent weeks, with cases expected to rise even further in the
Fall and Winter months;
WHEREAS, the further spread of COVID-19 in the State of New Mexico
poses a threat to the health, safety, and wellbeing of children who are not yet
eligible to receive a vaccine; persons who cannot be vaccinated due to medical
reasons; immunocompromised individuals; and vulnerable persons including
persons in hospitals, long-term care facilities, and other congregate care
facilities;
WHEREAS, the Food and Drug Administration (FDA) has approved every
adult for a booster dose six months after the completion of the individuals
primary series of vaccination with Pfizer-BioNTech and Moderna vaccines or two
months after the completion of the individuals primary series of vaccination
with Johnson & Johnsons Janssen vaccine, and the Centers for Disease
Control and Prevention (CDC) has stated recently that all adults 18 and over
should receive a booster vaccine;
WHEREAS, it is of critical importance to ensure that workers in
hospitals, long-term care facilities, and other congregate care facilities
receive boosters doses of COVID-19 vaccine, if eligible, to fight rising rates
of spread in these situations; and
WHEREAS, the New Mexico Department of Health possesses legal
authority pursuant to the Public Health Act, NMSA 1978, Sections 24-1-1 to -40,
the Public Health Emergency Response Act, NMSA 1978, Sections 12-l0A-1 to -19,
the Department of Health Act, NMSA 1978, Sections 9-7-1 to -18, and inherent
constitutional police powers of the New Mexico state government, to preserve
and promote public health and safety, to maintain and enforce rules for the
control of a condition of public health importance, and issue rules for
immunization against conditions of public health importance.
NOW, THEREFORE, I, David R. Scrase,
M.D., Acting Secretary of the New Mexico Department of Health, in accordance
with the authority vested in me by the Constitution and the Laws of the State of
New Mexico, and as directed by the Governor pursuant to the full scope of
emergency powers under the All Hazard Emergency Management Act, do hereby
declare the current outbreak of COVID-19 a condition of public health importance,
as defined in NMSA 1978, Section 24-l-2(A), and hereby ORDER and DIRECT as
follows:
DEFINITIONS
For
the purposes of this Order, the following term shall have the meaning given to
them, except where the context clearly requires otherwise:
(1) "Congregate care facility"
means nursing homes, assisted living facilities, adult day cares, hospice
facilities, rehabilitation facilities, State correctional facilities, juvenile
justice facilities, residential treatment centers, the New Mexico State
Veterans' Home, and community homes.
(2) "Congregate care facility
worker" means any paid or unpaid individuals working in a congregate care
facility. This includes workers
providing services who have the potential for direct or indirect exposure to
patients or residents in a congregate care facility. A congregate care facility worker includes
contractors who perform services on-site at the congregate care facility.
(3) "Fully vaccinated" means
two weeks after an individual completed the entire recommended series of
vaccination with a vaccine approved by the Food and Drug Administration (FDA),
including on an emergency use basis, to prevent COVID-19. An individual will be fully vaccinated two
weeks after the second dose of the Pfizer-BioNTech or Moderna COVID-19 vaccines.
An individual will be fully vaccinated
two weeks after a single-dose Johnson and Johnson's Jassen COVID-19 vaccine.
(4) "Hospital" means any public
hospital, profit or nonprofit private hospital, general hospital, or special
hospital.
(5) "Hospital Worker" means all
paid and unpaid individuals who work on-site in a hospital in a setting where
care is provided to patients or patients have access for any purpose. This includes workers who have the potential
for direct or indirect exposure to patients or COVID- 19 airborne aerosols. Hospital workers include, but are not limited
to, nurses, physicians nursing assistants, technicians, therapists,
phlebotomists, pharmacists, students and trainees, contractual staff not
employed by the hospital, and persons not directly involved in patient care,
but who could be exposed to infection agents that can be transmitted in the
hospital (e.g. clerical, dietary, environmental services, laundry, security,
and volunteer personnel).
(6) "School worker" means all
paid and unpaid adults serving in a private school, public school, or charter
school.
(7) "Partially vaccinated"
means an individual who has started, but not completed, their primary series of
vaccination.
(8) "Primary series of vaccinations"
means the first and second doses of the Pfizer-BioNTech and Moderna COVID-19
vaccines or the first dose of the Johnson & Johnsons Janssen COVID-19
vaccine.
(9) "Qualifying medical
condition" means a permanent or temporary medical condition recognized by
the FDA or Centers for Disease Control and Prevention (CDC) as a
contra-indication to COVID-19 vaccination.
DIRECTIVES
I HEREBY DIRECT AS FOLLOWS:
(1) All school workers in any private
school, public school, or charter school who (i) are not fully vaccinated
against COVID-19; (ii) have not received a booster dose, if eligible according
to the FDA, by January 17, 2022, or within four weeks of becoming eligible;
and/or (iii) are unwilling to provide proof of such vaccination to their respective
supervisors shall:
a. Provide adequate proof that the
school worker has tested negative for COVID-19 on a weekly basis; and
b. Wear a mask or multilayer cloth
face covering at all times indoors during the course and scope of their
employment except when eating or drinking. An unvaccinated school worker will only be
exempt from wearing a mask indoors if adequate proof is provided that the
school worker has been instructed otherwise by a licensed healthcare provider.
(2) All private schools, public schools,
and charter schools shall maintain records of school worker vaccination status
in accordance with applicable privacy laws and regulations. The records regarding a worker's vaccination
status shall be provided to the Department of Health promptly upon request.
(3) All hospital workers, congregate care
facility workers, and employees of the Office of the Governor Michelle Lujan
Grisham are required to be fully vaccinated against COVID-19 unless they
qualify for an exemption. Further, all
such individuals are required to receive a booster dose of the vaccine, if
eligible according to the FDA, unless they qualify for an exemption. If an individual does not qualify for an
exemption, the individual shall:
a. Receive their primary series of
vaccination by October 6, 2021, and if eligible, receive a booster dose no
later than January 17, 2022, or within four weeks of becoming eligible; and
b. Provide proof of vaccination to the
appropriate person or supervisor:
i. Hospital workers and congregate
care facility workers shall provide proof of vaccination or exemption to their
respective supervisors.
ii. Contractors who are hospital
workers shall provide proof of vaccination to the operator of the hospital in
which the contractor provides on-site services.
iii. Employees of the Office of Governor Michelle Lujan
Grisham shall provide proof of vaccination to the Chief Operations Officer.
(4) The workers subject to Section (3) of
this Order may be exempt from the COVID- 19 vaccination requirement set forth
above if they have a qualifying medical condition which immunization would
endanger their health, or they are entitled under the Americans With
Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII),
or any other applicable law to a disability-related reasonable accommodation or
a sincerely held religious belief accommodation. Nothing in this Order precludes the entities
which employ or contract with these workers from providing disability-related
reasonable accommodations and religious accommodations to the requirements of
this Order as required by law.
a. To be eligible for an exemption due
a qualifying medical condition, the individual must provide their employer or
operator of the facility they contract with a statement from a physician, nurse
practitioner, or other medical professional licensed to practice in New Mexico
stating that the individual qualifies for the exemption and indicating the
probable duration of the individual's inability to receive the vaccine;
b. To be eligible for an exemption due
to a disability, the individual must provide their employer or the operator of
the hospital or congregate care facility they contract with accommodation
documentation from a physician, nurse practitioner, or other medical professional
licensed to practice in New Mexico stating that the individual has a disability
that necessitates an accommodation and the probable duration of the individuals
inability to receive the vaccine; or
c. To be eligible for an exemption due
to a sincerely held religious belief, the individual must document that the
request for an accommodation has been made and provide their employer or the
operator of the facility they contract with a statement regarding the manner in
which the administration of a COVID-19 vaccine conflicts with the religious
observance, practice, or belief of the individual.
(5) If an operator of a hospital,
operator of a congregate care facility, or the Office of Governor Michelle
Lujan Grisham determines a worker to have met the requirements of an exemption
pursuant to Section (4), the unvaccinated exempt worker shall:
a. Provide adequate proof that the
individual has tested negative for COVID- 19 on a weekly basis; and
b. Wear a mask or multilayer cloth
face covering at all times indoors at the hospital or congregate care facility
except when eating or drinking. An
unvaccinated worker will only be exempt from wearing a mask indoors if adequate
proof is provided that the individual has been instructed otherwise by a
licensed healthcare provider.
(6) The operator of a hospital, operator
of a congregate care facility, and the Office of Governor Michelle Lujan
Grisham shall maintain records of all workers' vaccination or exemption status
in accordance with applicable privacy laws and regulations. If a worker is exempt pursuant to Section (4),
then the operator or employer also must maintain records of the worker's
testing results pursuant to Section (5). The operator of a hospital is required to
report to the Department of Health the total number of (i) workers who are
subject to this Order, (ii) fully vaccinated workers, (iii) fully vaccinated
workers who have received a booster dose; (iv) fully vaccinated workers who are
eligible for, but have not yet received, a booster dose; (v) partially
vaccinated workers, (vi) unvaccinated workers, (vii) unvaccinated workers who
have been granted an exemption from the COVID-19 vaccination requirement. The number of hospital workers shall be
submitted to the Department of Healths Hospital Reporting Portal (https://nm.readyop.com/fs/4cjm/d866)
monthly or at an interval to be determined by the Department. The operator of a congregate care facility
shall provide the Department of Health records regarding a workers vaccination
or exemption status promptly upon request.
(7) Hospital workers, congregate care
facility workers, and employees of the Office of the Governor Michelle Lujan
Grisham shall provide proof of vaccination or records of their exemption status
to the Department of Health, if requested.
I FURTHER DIRECT as follows:
(1) This Order shall be broadly disseminated in English,
Spanish and other appropriate languages to the citizens of the State of New
Mexico.
(2) Nothing in this Order is intended to
restrain or preempt local authorities from enacting more stringent restrictions
than those required by the Order.
(3) The New Mexico Department of Health, the New Mexico
Department of Public Safety, the New Mexico Public Education Department and all
other State departments and agencies are authorized to take all appropriate
steps to ensure compliance with this Order.
(4) Any person, hospital, or congregate care facility who
willfully violates this Order may be subject to civil administrative penalties
available at law.
(5) This Order shall take effect on December 2, 2021 and
remain in effect for the duration of the public health emergency first declared
in Executive Order 2020-004 and any subsequent renewals of that public health
emergency declaration, unless otherwise rescinded.
ATTEST:
DONE AT THE EXECUTIVE OFFICE
THIS 2ND DAY OF DECEMBER 2021
/ S
/ WITNESS
MY HAND AND THE GREAT
MAGGIE TOULOUSE OLIVER SEAL OF
THE STATE OF NEW MEXICO
SECRETARY OF STATE
/ S /
DAVID R. SCRASE, M.D.
ACTING SECRETARY
OF THE
NEW MEXICO DEPARTMENT OF HEALTH