Santa Clara County Updates Health Order to Require Businesses to Ascertain COVID-19 Vaccination Status of Personnel

By: Daniel J. McCoy

In connection with Santa Clara County’s move into California’s yellow COVID-19 tier, the state’s lowest pandemic restriction level under its tier system, the county’s health officer updated its Health Order, effective May 19, 2021, principally to lift many COVID-19 restrictions, including requirements that businesses maximize the number of employees who must telework.

Most significantly, the county imposed a new requirement that all businesses and government entities ascertain the vaccination status of their personnel on or before June 1, 2021. The order and accompanying FAQs define “personnel” as employees, contractors, sub-contractors, volunteers and onsite vendors or other individuals who regularly provide onsite services. Although the requirement applies only to personnel who work in Santa Clara County, the FAQ strongly encourages Santa Clara County businesses and entities to do this for all personnel, including remote workers.

Businesses and entities must maintain a written record of their efforts to ascertain whether their personnel are fully vaccinated by either (1) confirming their visual review of documentation establishing vaccination (such as a vaccine card); or (2) gathering from personnel a Self-Certification of Vaccination Status. These records must be treated as confidential medical records.

Businesses and entities must assume that personnel who refuse to disclose their vaccination status are not fully vaccinated and must comply with the county’s Mandatory Directive on Use of Face Coverings and Mandatory Directive For Unvaccinated Personnel. These directives require unvaccinated personnel to wear a face covering, and exclude unvaccinated personnel from the workplace for the duration of the applicable quarantine or isolation period if they are confirmed to have COVID-19 or come into “close contact” with a confirmed COVID-19 case. Businesses and entities must also provide unvaccinated personnel with information on how to get vaccinated, regardless of whether they work onsite or remotely. The county provides a sample compliant information sheet for this purpose.

Ascertainment of vaccination status for all personnel must be completed by June 1, 2021, and must be conducted every 14 days thereafter for all reported or assumed unvaccinated workers. Failure to comply may result in fines of up to $5,000 per violation per day.

Further, the new order strongly recommends that businesses and entities (1) prohibit unvaccinated personnel from engaging in any work-related travel, especially travel greater than 150 miles from the county; and (2) require all unvaccinated personnel to obtain weekly PCR testing for COVID-19, or daily rapid antigen testing with COVID-19 PCR confirmation of any positive test results.

As of May 21, 2021, neither the State of California, nor any other county in the Bay Area, has imposed such an ascertainment requirement, but that is subject to change.


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