October 13, 2021

How Fast Can CDPH Add a COVID Immunization Requirement to Attend School?

By Children’s Health Defense California Chapter Team

California Governor Newsom has announced that the COVID-19 vaccine would be added to the schedule of immunizations required for students attending in-person learning in schools. Once approved by the FDA, the COVID-19 vaccine could be required for all California schoolchildren within a day.

On October 1, 2021, the Office of Governor Gavin Newsom issued a statement regarding the California Governor’s “plans to add the COVID-19 vaccine to the list of vaccinations required to attend school in-person.” California is the first state to push for such a measure, which the Governor boasts of, and encourages other states to follow the state’s example. In his announcement, Governor Newsom directed the California Department of Public Health (CDPH) to add the COVID-19 vaccine, upon full approval by the Food and Drug Administration (FDA), to the list of other vaccinations required of students attending school in-person. The reason for the rush cannot be the safety of our children as even the CDC’s own data shows that COVID-19 has a survivability rate above 99.98% for children under 18.

Steps to COVID-19 Vaccine Mandate for School Children

The addition of the COVID-19 vaccine to the list of required vaccinations would be undertaken by CDPH following California Health and Safety Code Section 120335(b), which requires immunizations for children attending private and public schools for a laundry list of named diseases, and “[a]ny other disease deemed appropriate[.]”

The CDPH’s rulemaking process is governed by the Administrative Procedure Act (APA), which establishes the procedures and standards undertaken by state agencies. The Office of Administrative Law (OAL) oversees California state agencies to ensure compliance with the procedures and standards of the APA. Regulations created pursuant to the APA generally proceed as regular or emergency rulemaking processes. Underground regulations, which do not follow the requirements of the APA, are prohibited from being enforced by state agencies.


CDPH Regular Rulemaking Process

Most regulations adopted under the APA are submitted under the “regular” rulemaking process. This process provides ample time for comprehensive public notice and public comment, and allows for thorough review of information and documents upon which the proposed action is based. This process can be completed in as few as 46 days, but could take up to a year.


CDPH would begin by publishing a Notice of Proposed Rulemaking with the OAL in the California Regulatory Notice Register. This Notice is generally filed with an Initial Statement of Reasons and the Proposed Regulation Text. CDPH will have one year from the filing of this notice of proposed action to complete the process and submit the completed rulemaking file to OAL.

The Notice of Proposed Rulemaking “contains a variety of information about the nature of the proposed regulatory changes including various findings, determinations, statutory authority and the law(s) being implemented… [and] also contains procedural information, such as deadlines for submitting comments, scheduling of hearings (if any), and where copies of the Express Terms, Initial Statement of Reasons, and any other supporting information can be obtained[.]”

The Notice will begin with announcing the 45-day public proceeding during which interested parties may make oral and written arguments regarding the proposed regulation, and will then provide details on how such comments may be submitted. Time frames for the public comment period will also be defined, as will any information regarding a public hearing. A background of existing law related to the proposed regulation, goals and policies of the agency in adopting the regulation, discussion of any existing conflicting state regulations, projected fiscal impact, and a list of documents and authorities relied upon in drafting the proposed regulation will also be included.

The Initial Statement of Reasons will include a summary of the proposed regulation, background and existing law related to the proposed regulation, and a more detailed discussion regarding the goals and polices of the proposed regulation and its projected economic impact than found in the Notice. The Proposed Regulation Text is a copy of the actual code section and legal language that will be added and/or amended should the proposed rulemaking be adopted.

OAL publishes the Notice Register every Friday. The register is organized by year and month, so the latest notices can be easily discovered by selecting the latest month under the current year.

To receive notice of proposed rulemakings by OAL, send an email to [email protected] and request to be put on OAL’s mailing list.

To subscribe to a weekly hard copy of the Notice Register, contact Thomson Reuters by telephone at (800) 888-3600.


During the public comment period outlined in the Notice of Proposed Rulemaking, which shall last a minimum of 45 days, the public may submit written comments on proposed regulations to CDPH’s Office of Regulations. According to the Office of Regulations itself, “[t]he most useful comments are those that identify the regulation section, discuss the issue, suggest changes to the proposed regulation text and explain why these changes address the issue.” The submitted comments must be considered by CDPH and will be addressed by the Department in its Final Statement of Reasons, filed when the final Adopted Regulation Text is published.

​When submitting a written comment, the following information must be provided:

  1. Contact Information
  • Name
  • Company Name (If applicable)
  • Street Address
  • City, State, Zip Code, Country
  • E-mail address

Your contact information is needed so that you can be provided with a copy of any modifications to the proposed regulation text.

  1. Regulation Tracking Number and Subject Title of the Proposed Regulation. For example, DPH-06-019 – Industrial Radiography
  1. Comments Specific to the Proposed Regulations

All information submitted with written comments on the proposed regulations becomes public information, so confidential information, protected health information or other personal information should not be included in the submitted comments.

Written comments should be submitted to the Office of Regulations by email to [email protected] (subject line should include the regulation tracking number and title of the proposed regulation), by facsimile transmission to (916) 636-6220 (cover page should include the regulation tracking number and title of the proposed regulation), or by mail or courier service to California Department of Public Health, Office of Regulations, 1415 L Street, Suite 500, Sacramento, CA 95814.

Interested parties may request to be added to the Office of Regulations’ mailing list by completing and submitting the Regulation Notice Request Sheet (PDF) by fax, mail or email to the Office of Regulations.


As a part of the rulemaking process, the public may be invited to attend a public hearing regarding the proposed regulation. If such a hearing has been scheduled, the time and place of the hearing will be listed in the Notice of Proposed Rulemaking that is published in the California Regulatory Notice Register. At the hearing, the public is permitted to present oral and/or written comments.

The CDPH may choose not to hold a public hearing. However, any interested party may force such a hearing by submitting a written request for a public hearing at least 15 days before the end of the public comment period.


Following the completing of the public comment period, and any public hearing that may be conducted, the CDPH may revise the proposed regulation. Substantive revisions, the determination of which would be determined solely by the CDPH itself, would be posted in an additional public Notice of Proposed Changes under Current Regulatory Proposals. This Notice would also outline the time period of public comments, typically 15 days, and direct the public as to where and how such comments may be submitted.


Once all public comment periods have passed and the revisions have been approved by the CDPH, and a Final Statement of Reasons and Final Regulatory Text has been posted under Current Regulatory Proposals, the proposed regulation is submitted to the OAL for review. The OAL has a maximum of 30 days to review that the CDPH’s rulemaking process for the proposed regulations has complied with the APA, and to approve the regulation. Proposed regulations under review of the OAL can be reviewed here, recent actions taken by OAL can be reviewed here and links to recently approved regulations, which must be filed with the Secretary of State, can be found here.

The regulation becomes law when it is filed with the Secretary of State.

CDPH Emergency Rulemaking Process

According to OAL, “[a]n ‘emergency’ means a situation that calls for immediate action to avoid serious harm to the public peace, health, safety, or general welfare. (Government Code section 11342.545.)” If the State of Emergency California has been under since March of 2020 has still not been lifted by the time the FDA approves a COVID-19 vaccine for school-age children, the CDPH may very well proceed under this truncated rulemaking process to mandate these vaccines for in-person learning.


In this shortened process, the CDPH files a Notice of Emergency Rulemaking and Emergency Regulatory Text with the OAL. Copies of documents filed under the emergency rulemaking process would be posted on CDPH’s website under Current Regulatory Proposals. The Notice will include the time period for public comment, if any, public hearing information, if any, and should otherwise generally contain the same information found in a regular Notice of Proposed Rulemaking, as described above. The Regulatory Text would again simply be the actual code or statute language being proposed.


Upon the posting of the Notice on OAL’s website, a five calendar day comment period would commence. However, OAL may forego a public comment period if “the emergency situation clearly poses such an immediate, serious harm that delaying action to allow public comment would be inconsistent with the public interest.” (Government Code section 11349.6(b).)

Comments by the public under the emergency rulemaking process must be submitted directly to OAL within the comment period.

Comments should be submitted to the OAL Reference Attorney:

e-mail to [email protected]

fax to (916) 323-6826

mail to

300 Capitol Mall, Suite 1250

Sacramento, California 95814

A copy of the comment must also be submitted to the rulemaking agency’s contact person, who should be listed on the Notice.

Any comment submitted under this process must indicate the emergency status of the process of a proposal under current review, as well as list the subject of the proposed action. When submitting a comment on an emergency rulemaking action, a copy of the comment must also be submitted to the rulemaking agency’s contact person, who should be listed on the Notice. Neither CDPH nor OAL is required to respond to any comments submitted.

A public hearing may be announced in the Notice of Emergency Rulemaking. If a hearing is not announced, one may not be forced.


Within 10 calendar days, the OAL must review and come to a decision regarding the proposed regulation. If OAL chooses not to approve the emergency proposal, a written decision with an explanation for rejection will be provided. As the OAL will scrutinize the emergency nature of such proceedings, and the CDPH’s reasons for choosing to pursue the abridged emergency route, disapproval of proposed regulation is possible.

If approved, the emergency regulation will generally become effective when filed with the Secretary of State.


Generally, an emergency regulation remains effective for 180 days, though this term can be extended if OAL approves re-adoption of the emergency regulation. The emergency regulation can become permanent, however, by filing a timely “certificate of compliance.” That is, if the forced-immunization regulation for school-children is adopted under the emergency rulemaking process, but during the 180-day (or extended) emergency period CDPH completes the regular process pursuant to APA guidelines – including a minimum 45 day comment period, public hearing called by any interested party, etc. – OAL would then have 30 days to review the certificate of compliance. If approved and submitted to the Secretary of State, the regulation requiring children to be subjected to a COVID-19 vaccine to attend school in person could become a permanent regulation.

Expected Implementation

According to the Governor’s Office, school children will be required to be vaccinated against COVID-19 for in-person learning beginning the term following full FDA approval of the vaccine for their grade span (i.e., K-6, 7-12). Current projections lead the Governor’s office to anticipate the new requirement to apply to grades 7-12 beginning July 1, 2022, based upon full FDA approval for ages 12 and over.

What You Can Do

Contact Governor Gavin Newsom and let him know that you do not support adding the COVID-19 vaccine to the list of required immunizations for children to attend school in person.

Contact CDPH to let them know that you do not approve of the proposed measures.

Email [email protected] and request to be put on OAL’s mailing list to be alerted when a new Notice is posted.

The time to act is NOW!