Santa Clara County Requires Employers to Ascertain Employees' Vaccination Status and Imposes Other Requirements to Prepare for Employees' Return to the Workplace

Wilson Sonsini Goodrich & Rosati

On May 18, 2021, Santa Clara County's Public Health Department issued a new order focused on safety measures designed to reduce the spread of COVID-19. The order became effective May 19, 2021, when the county entered the Yellow Tier of the State's Blueprint for a Safer Economy. It contains significant changes for businesses operating in Santa Clara County, both to encourage vaccination and to prepare employers to differentiate between vaccinated and unvaccinated personnel pursuant to additional changes expected in connection with California's "reopening" on June 15, 2021.

  • Employers must ascertain the vaccination status of all personnel. Perhaps the most significant change requires employers to ask all employees, contractors, interns, volunteers, and even gig-workers who work onsite whether they have been vaccinated by June 1, 2021.
    • Employers must keep a record reflecting each person's vaccination status. That record may simply document the employer's review of the employee's vaccine card or other documentation, or the employee's completed "Certification of Vaccination Status" Form provided by Santa Clara County. Employers must treat this information confidentially, and maintain it until the requirements of the order are no longer effective.
    • Employees may decline to provide their vaccination status. Such employees will be presumed to be unvaccinated.
    • Employers must ask workers who are unvaccinated or who decline to disclose their vaccination status for an updated vaccination status every 14 days after June 1 (e.g., June 15, June 29, July 13, etc.) and document their status.
    • Although employers are only required to determine the vaccination status of their workers who perform work at a worksite in Santa Clara County, they are strongly encouraged to determine the vaccination status for all other personnel, including those working remotely.
    • Businesses that fail to comply with these requirements are subject to enforcement and may be required to pay fines of up to $5,000 per violation per day.
    • Wilson Sonsini and its technology subsidiary, SixFifty, have created an automated Return-to-Work Toolkit to help businesses safely transition their employees back to the workplace amid COVID-19. As part of its offering, SixFifty has developed a ticketing tool that is designed to assist employers in collecting and tracking the vaccination status of their employees. Please contact Wilson Sonsini for more information.
  • Employers must require all personnel to immediately alert the employer of certain COVID-19 exposure events. All personnel must notify the employer immediately if they test positive for COVID-19 and were present in the workplace either (1) within the 48 hours prior to onset of symptoms or within 10 days after onset of symptoms if they were symptomatic, or (2) within 48 hours prior to the date on which they were tested or within 10 days after the date on which they were tested if they were asymptomatic. Businesses are required to report any confirmed COVID-19 cases to Santa Clara County within 24 hours.
  • Social distancing protocols are no longer required. In a significant departure from the Santa Clara County COVID-19 orders of the past year, businesses are no longer required to submit Social Distancing Protocols to the County Public Health Department.
  • Capacity limits are no longer mandated. The order has eliminated county-specific rules related to capacity within buildings and instructs businesses to follow the state's guidance. Under California's guidance, while there are no capacity limitations for office buildings, employers still must implement measures to physically separate workers and customers by at least six feet and limit the number of employees at the office at one time.

The order also contains a Mandatory Directive for Unvaccinated Personnel, which contains both mandatory requirements and strong recommendations for such personnel. The mandatory requirements provide that:

  1. all employers must provide information on how to get vaccinated to all personnel not fully vaccinated, whether working onsite or remotely; and
  2. all personnel not fully vaccinated who are a "close contact" to a confirmed case, or who have been confirmed to have COVID-19, must be excluded from the workplace for the duration of all applicable quarantine and/or isolation periods in accordance with the guidance of the Health Officer.

The order "strongly recommends" that businesses:

  1. prohibit all personnel not fully vaccinated from engaging in any work-related travel, particularly travel greater than 150 miles from Santa Clara County; and
  2. require all personnel not fully vaccinated to obtain weekly PCR testing for COVID-19, or daily antigen testing with COVID PCR confirmation of any positive results.

Additionally, the order requires that all persons continue to follow the county's Mandatory Directive on Use of Face Coverings, which confirms that all employees, regardless of vaccination status, must wear face coverings in the workplace. While the CDC and Department of Health have loosened mask restrictions for vaccinated individuals in social settings, current Cal/OSHA regulations still require all employees in California to wear face coverings while working indoors, subject to the exceptions with which California employers are now familiar (e.g., masks are not required for someone who is alone in a closed office or while someone is eating and socially distanced).

Employers should immediately implement a system to ascertain the vaccination status of its personnel. Employers also should continue to monitor federal, state, and local guidance regarding return-to-work requirements, particularly the differing rules expected to apply to vaccinated and unvaccinated workers.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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