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Santa Clara County Requires Employers to Ascertain Vaccination Status of Personnel

May 22, 2021

On May 18, 2021, Santa Clara County issued the Order of the Health Officer of the County of Santa Clara to Protect the Community from COVID-19, which became effective on May 19, 2021. Most notably, the order requires employers to ascertain the vaccination status of personnel by June 1, 2021; institute mandatory reporting for employees if they test positive for COVID-19; and enforce additional rules for personnel who are not fully vaccinated. The order also eliminated the county’s prior requirements regarding capacity limitations and the posting of social distancing protocols.

Scope and Definitions

As a general matter, the order applies broadly across the county. The order requires that all individuals, businesses, government entities, and other entities in the county comply with all applicable provisions. There are no enumerated exemptions.

The order also applies to all businesses, which are defined as any for-profit, nonprofit, or educational entity regardless of entity structure or nature of services provided. The term “personnel” is defined as employees, contractors, sub-contractors, independent contractors, vendors who are permitted to sell goods onsite, volunteers, and “other individuals who regularly provide services onsite at the request of the business.”

The county issued an FAQ that provides additional guidance on interpretation.

Ascertainment of Vaccination Status

The order requires that businesses and government entities “ascertain” by June 1, 2021 the vaccination status of all personnel who perform any work at a facility or worksite in the county, and seek updated information for all  personnel who are not fully vaccinated every 14 days thereafter. The county also strongly encourages businesses and governmental entities to determine the vaccination status for all other personnel, including personnel working remotely. Any personnel who decline to provide the requested information are to be treated as not fully vaccinated. A person is “fully vaccinated” two weeks after completion of the entire recommended series of vaccination (one dose for Johnson & Johnson and two doses for Pfizer or Moderna) with a vaccine authorized to prevent COVID-19 by the federal Food and Drug Administration.

Furthermore, businesses and government entities must maintain records for each personnel member reflecting that person’s vaccination status. The Santa Clara County Public Health Department has made publicly available a “Certification of Vaccination Status” form that businesses can use. Businesses can devise their own methods for gathering and documenting the vaccination status of their personnel. Businesses may need to require information and/or attestations from their third-party vendors such as staffing agencies or contractors to determine the vaccination status of certain personnel whom the businesses do not employ. Businesses should exercise care to maintain vaccination status information and any retained proof of vaccination information as confidential.

Mandatory Rules for Personnel Not Fully Vaccinated

The order also requires that businesses and government entities require all personnel who are not fully vaccinated to (1) comply with the county’s Mandatory Directive on Use of Face Coverings, and (2) adhere to the applicable provisions of the Mandatory Directive for Unvaccinated Personnel (the directive). The directive was issued concurrently with the order, and requires that unvaccinated personnel continue to comply with the statewide guidance on face coverings and quarantine if they are in close contact with a confirmed COVID-19 case. Businesses and government entities also must provide personnel not fully vaccinated with information on how to get vaccinated. The Santa Clara County Public Health Department made publicly available a vaccine information sheet sufficient to meet this requirement.

Strong Recommendations for Personnel Not Fully Vaccinated

The county further urges businesses and government entities to: (1) prohibit all personnel not fully vaccinated from engaging in any work-related travel, especially travel greater than 150 miles from the county and (2) require all personnel not fully vaccinated to obtain weekly polymerase chain reaction (PCR) testing for COVID-19, or daily antigen testing with COVID-19 PCR confirmation of any positives.

Face Coverings Still Generally Required

The county’s Mandatory Directive on Use of Face Coverings requires that all residents, businesses, and governmental entities follow California’s Guidance for Use of Face Coverings issued on May 3, 2021. The directive also requires businesses and governmental entities to ensure that personnel, customers, and other persons at facilities or worksites they control comply with this directive. It remains to be seen whether the county will follow the state’s lead in aligning its face mask guidance as of June 15 with the Centers for Disease Control and Prevention’s new guidance issued on May 13. That CDC guidance provides that fully vaccinated persons need not wear face masks in most indoor and outdoor settings.

Mandatory Reporting Regarding Personnel Contracting COVID-19

The order requires businesses and government entities to require that all personnel immediately report if they test positive for COVID-19 and were present in the workplace during the following periods: (a) for symptomatic cases, within 48 hours prior to the onset of symptoms until 10 days after the onset; or (b) for asymptomatic cases, within 48 hours prior to the date they were tested until 10 days after they were tested. When a business or government entity becomes aware of such a case, it must report the case within four hours to the Santa Clara County Public Health Department at its Worksite Case and Contact Reporting Portal. After reporting, they must comply with all of the county’s case investigation and contact tracing measures. In addition, businesses and government entities must exclude from the workplace all positive cases and close contacts who are not fully vaccinated.

Enforcement

A violation of the order, including for failing to ask about the vaccination status of workers, is a misdemeanor punishable by fine of up to $5,000 per violation per day, imprisonment, or both.

Conclusion

Employers operating within Santa Clara County should take immediate steps to meet these requirements, particularly to determine personnel’s vaccination status. The deadline is fast approaching, and penalties for noncompliance are severe.

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Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Orange County/Silicon Valley
Daryl S. Landy

Silicon Valley
Alicia J. Farquhar
Melinda S. Riechert
Michael D. Schlemmer

San Francisco
Eric Meckley