Santa Clara County Updates Public Health Order Reducing Obligations On Employers

Jackson Lewis P.C.

On May 18, 2021, Santa Clara County ordered businesses to track employee’s COVID-19 vaccination status. This Order departed largely from the prior County Orders as well as the California Blueprint for a Safer Economy.  However, in conjunction with the California Department of Industrial Relations, Division of Occupational Safety and Health (commonly known as Cal/OSHA), the County has now issued a new Order limiting the requirement.

The June 21, 2021 health order includes recommendations to continue to keep the community safe from COVID-19, which the County suggests include: (1) getting vaccinated; (2) continuing to emphasize outdoor activities; (3) avoid travel if not fully vaccinated; and (4) continue regular testing for COVID-19 if not fully vaccinated and, regardless of vaccination status, get immediately tested if you have COVID-19 symptoms.  The County cited declining cases, widespread community vaccination, and the newly amended Cal/OSHA regulations as the reasons it was phasing out its May 18th Order.

Under the revised order, businesses in Santa Clara county must have completed two rounds of ascertainment of the vaccination status of their personnel. Prior to the June order, ascertainment of vaccination status was an ongoing obligation for employers in the county.

As clarified by the County, the first round of ascertainment was to be for all personnel and the second round for those who did not indicate they were fully vaccinated. Once two rounds of ascertainment are completed, the May 18th order will no longer apply.

The first round should have been completed by June 1, 2021, per the original order. The FAQs Santa Clara issued regarding the revised order state that if employers have not completed ascertainment to date, the first round should be completed immediately, and the second round 14 days thereafter.

The County states all entities must maintain their records of compliance for the period Cal/OSHA COVID-19 Emergency Temporary Standards (ETS) remain in effect. Currently, the ETS are set to expire on January 14, 2022.

Under the May and June orders, a business can ascertain an employee’s vaccination status by reviewing the documentation establishing the employee’s vaccination status e.g. the employee’s vaccine card, or the employee may complete a certification of vaccination status. The County developed a template for self-attestation to assist with compliance with the order.

Employers are directed to document if an employee declines to disclose their vaccination and like the ETS treat the employee as if they are not fully vaccinated.

Jackson Lewis continues to track local and state regulations pertaining to COVID-19 in the workplace. 

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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