California County Requires Employers to Ascertain Vaccination Status

By Nicholas McKinney and Bruce Sarchet © Littler Mendelson May 21, 2021
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vaccination card

In the early days of the COVID-19 pandemic, health officials in several Northern California counties were among the first to act, issuing orders addressing public health and safety. Continuing to lead the way, on May 18, the Santa Clara County Health Officer issued an order that, among other things, requires businesses and governmental entities to ascertain the vaccination status of all personnel. This order went into effect on May 19 and continues until rescinded, superseded or amended by the Health Officer.

Generally, the order includes provisions that focus on COVID-19 case reporting, vaccination, and use of face coverings indoors, and applies to individuals, businesses, and entities in the county. Most of the requirements will look familiar to those who have already implemented policies under Emergency Temporary Standards, which still remain in effect, from the California Division of Occupational Safety and Health—which is known as Cal/OSHA. An unfamiliar vaccine benchmarking requirement is the newest attempt to involve employers in the push to increase vaccination rates.

Vaccine Benchmarking

In what appears to be a first-of-its-kind mandate, the health order requires business and government entities to ascertain the vaccination status of all personnel. This includes employees, contractors and subcontractors, independent contractors (including "gig workers"), vendors permitted to sell goods onsite, volunteers, and other individuals who regularly provide services onsite at the request of the business.

Businesses and governmental entities must keep a record of who is vaccinated and who is not vaccinated until the order is no longer in effect. Businesses and governmental entities that have individuals that decline to disclose vaccine status information must document this and treat these individuals as if they have not been vaccinated.

The deadline to collect this information is June 1. Following the June 1 deadline, businesses and governmental entities must request an updated vaccine status every 14 days from those who are not fully vaccinated or those who have declined to disclose their status. Any business that fails to ask about, and record, the vaccination status of its workers is subject to enforcement and may be required to pay fines of up to $5,000 per violation per day.

While the county has provided a sample certification of vaccine status form, covered entities should contact counsel to ensure that any request is compliant with employee data collection and privacy laws.

Mandatory Reporting

In addition to the vaccine status requirement, under the order all businesses and governmental entities must require that all personnel immediately alert the business or governmental entity if (a) they test positive for COVID-19 and were present in the workplace within the 48 hours prior to onset of symptoms or within 10 days after onset of symptoms if they were symptomatic, or (b) within 48 hours prior to the date on which they were tested or within 10 days after the date on which they were tested and found positive for COVID-19 if they were asymptomatic.

Upon learning that one of its personnel is a confirmed-positive COVID-19 case and was at the workplace within the prescribed timeframe, the business or governmental entity is required to report the positive case to the county health department at sccsafeworkplace.org within 24 hours. (This is more restrictive than Cal/OSHA requirements, which require notice after an outbreak.) The business or governmental entity is then required to comply with all case investigation and contact tracing measures directed by the county.

Face Coverings

Additionally, the health order requires that all persons follow the county's Mandatory Directive on Use of Face Coverings. Essentially, this directive requires that all persons comply with the California Department of Public Health Guidance for Face Coverings. Despite the loosening restrictions from the Department of Health and the CDC for vaccinated individuals, Cal/OSHA regulations still require the use of face coverings while working indoors. State and local workplace laws are developing rapidly. Employers should consult counsel on the implementation of workplace safety and return-to-work policies before differentiating between vaccinated and unvaccinated individuals. 

Nicholas McKinney and Bruce Sarchet are attorneys with Littler Mendelson in Sacramento, Calif. © 2021 Littler Mendelson. All rights reserved. Reposted with permission. 

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