Smith, Gambrell & Russell, LLP

On May 18, 2021, the Health Office of the County of Santa Clara, California, issued a new COVID safety measure order.  The Order became effective May 19, 2021, and will remain in effect until rescinded, superseded or amended.  The Order can be found here.

The most notable portion of the Order is the requirement – in Section 9(c) – that all governmental entities and businesses ascertain the vaccination status of their personnel.  This must be done within 14 days of the effective date of the Order, i.e., by June 2, 2021.  Thereafter, updated information for all unvaccinated personnel must be obtained every 14 days.  Records must be kept demonstrating compliance with this provision.  Any person whose vaccination status cannot be determined (and this would include someone who refuses to disclose their status) must be treated as unvaccinated.

Under Section 9(b) of the Order, all businesses and governmental entities must require that all personnel immediately notify them if they test positive for COVID and they were present in the workplace either: (1) within 48 hours before onset of symptoms or within 10 days after onset of symptoms if they were symptomatic; or (2) within 48 hours before the date on which they were tested or within 10 days after the date on which they were tested if they were asymptomatic.  Any business or governmental entity learning of a positive case of COVID at the workplace within these timeframes is required to report the case to the County Public Health Department within 24 hours.

With regard to unvaccinated personnel (those who are, in fact, unvaccinated, as well as those whose vaccination status cannot be determined), the County Health Officer issued a Mandatory Directive for Unvaccinated Personnel, dated May 18, 2021, effective May 19, 2021.  The Directive can be found here. The Directive requires the following for both businesses and governmental entities: (1) ensure that all unvaccinated personnel wear compliant face coverings; (2) ensure that unvaccinated personnel who come into close contact with someone confirmed to have COVID, or who themselves are confirmed to have COVID, be excluded from the workplace for the duration of applicable quarantine or isolation periods; and (3) provide all personnel who are not yet vaccinated with information on how to get vaccinated.  In addition, the Directive strongly recommends that unvaccinated personnel be prohibited from engaging in work-related travel, and in particular travel greater than 150 miles from Santa Clara County.  The Directive also strongly recommends that all unvaccinated personnel be required to obtain weekly PCR testing or daily antigen testing for COVID.

The Order and Directive are certain to raise difficult privacy issues as to vaccination status reporting, and personnel management issues as to mask wearing.  Unfortunately, employers must comply with both the Order and the Directive, as failure to do so is punishable as a misdemeanor.

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