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Santa Clara County Health Order Reduces Telework and Mandates Vaccination Status Reporting

On May 18, 2021, Santa Clara County issued a new Public Health Order, effective May 19, 2021 that covered the following key topics for businesses:

  • Maximizing telework is no longer required: Businesses are no longer required to maximize the number of people who work remotely.
  • Social Distancing Protocols are no longer required: Businesses are no longer required to submit Social Distancing Protocols to the County Public Health Department. Instead, they must comply with any State rules applicable to their business, including the Cal/OSHA’s COVID-19 Emergency Prevention
  • Employers are required to determine the vaccination status of their employees (and onsite contractors and volunteers).

Santa Clara County’s new rules are an attempt to get ahead of the June 15th reopening and potential revisions to workplace rules both at the state and county levels.

The Santa Clara County mandate advances what the state has so far required of employers. California already allows businesses to ask vaccination status to determine whether people may attend certain larger gatherings like sports games, weddings, conferences, concerts or theater shows. Now, the County appears to be moving towards a model of restricting who may return to work based on vaccination status.

County officials have indicated they wanted to get ahead of potential revisions to California’s Division of Occupational Safety and Health or Cal/OSHA workplace standards. On Thursday, Cal/OSHA’s Standards Board will consider allowing fully vaccinated workers to stop socially distancing from one another, among other updates to existing rules. The new Cal/OSHA rules, if enacted, will very clearly differentiate between what’s required in the workplace in terms of safety rules for those who are fully vaccinated and those who are not.

What is an employer required to do? Businesses must ascertain the vaccination status of all personnel. Until a person’s vaccination status is ascertained, they must be treated as not fully vaccinated.

Is there a deadline for compliance? Yes. Compliance is required by June 2, 2021 or within 14 days of the Order. Thereafter, employers must obtain updated vaccination status for all personnel who were not fully vaccinated every 14 days.

Can employees refuse to answer? Yes. Those who refuse to share whether they have been vaccinated with their employer must follow any future rules as though they are unvaccinated.

What are the recordkeeping requirements? They are a bit vague, but simply state business and governmental entities must maintain appropriate records to demonstrate compliance with this provision.

What are rules for those not fully vaccinated? Businesses must require all personnel who are not fully vaccinated to (1) comply with all applicable provisions of the Mandatory Directive on Use of Face Coverings, and (2) comply with all applicable provisions of the Health Officer’s Mandatory Directive on Unvaccinated Personnel.

Can employers mandate vaccinations? Yes, however, while employers can mandate employees to get vaccinated prior to return to the office, mandatory vaccination policies present different employment law challenges and should be carefully evaluated. The new Santa Clara County orders do not mean that any employees must get the shots, although some workplaces may mandate vaccinations.

Can employees refuse to wear masks indoors in California right now? No, although the CDC has put out certain guidelines that remove masking requirements for vaccinated individuals indoors in certain settings, California and Santa Clara County have not adopted such rules.

Do employers still have to maximize remote work in Santa Clara County? No. The new yellow tier status and new guidelines means that Santa Clara County workplaces will no longer be required to maximize remote work as earlier health orders required, but in conjunction they must begin determining whether employees have been vaccinated. The order also requires workplaces and schools to continue reporting COVID-19 cases. 

What are an employers action items? Employers should ascertain how they can start reducing telework in a safe manner while at the same time immediately deploying a protocol for ascertaining vaccination status. Remember that vaccination status, while mandated information, is still private employee information so employers need to ensure they have ways to ensure confidentiality.

If you require assistance on how to gather information from employees on vaccination status or comply with the new Public Health Orders, please contact Christine Long, Partner at christine.long@berliner.com or (408) 286-5800.