On May 18, 2021, the Santa Clara County Health Officer issued an Order Establishing Focused Safety Measures to Protect the Community from COVID-19 (“Order”), which requires employers to ascertain the vaccination status of all personnel (including employees, contractors, and volunteers) who work at a facility or worksite in Santa Clara County (“County”) and to report cases of positive COVID-19 cases (among other requirements). The Order took effect on May 19, 2021 and will continue to be in effect until the Order is rescinded, superseded, or amended by the County.

New Employer Requirements

The Order requires employers with personnel that regularly work at a facility or worksite in Santa Clara County to do the following:

1. Ascertain the vaccination status of all personnel and maintain appropriate records to show compliance with this requirement.

Employers are required to initially ascertain the vaccination status of all personnel who perform any work at a facility or worksite in the County by June 1, 2021. After the initial determination of vaccination status, employers are required to request an updated vaccination status from personnel who were not fully vaccinated (including personnel whose vaccination status has not been determined) and personnel who declined to disclose their vaccination status every 14 days.

For purposes of the Order, personnel includes individuals who work at a facility or worksite in the County, including the following:

  • Employees;
  • Contractors and sub-contractors (e.g., those who sell goods or perform services onsite or who deliver goods for the employer);
  • Independent contractors (e.g., “gig workers” who perform work via the employer’s app or other online interface);
  • Vendors who are permitted to sell goods onsite;
  • Volunteers; and
  • Other individuals who regularly provide services onsite at the request of the employer.

The Order does not require employers to obtain the vaccination status of personnel working remotely, though the Order strongly encourages employers to do so.

The Order recognizes that personnel may decline to provide their vaccination status. If this occurs, employers must document that a worker declined to disclose their vaccination status and must treat the worker as not fully vaccinated (see below for requirements for workers not fully vaccinated).

Recordkeeping: Employers are required to maintain records that demonstrate compliance with this requirement. Employers must maintain records for each worker that reflects that person’s vaccination status. The record may be the employer’s review of the documentation establishing vaccination status (e.g., the employee’s vaccine card) or the employee’s completed Certification of Vaccination Status. The County provides a template Certification of Vaccination Status here.

Employers are not required to provide the vaccination status to the County, unless requested by the County. The County may ask an employer to demonstrate their compliance with the requirement if they receive information suggesting the employer is noncompliant.

Compliance with Federal Laws: Some employers may be concerned with HIPAA compliance because the Order requires the collection of vaccination status; however, it is important to highlight that HIPAA protects individually identifiable health information created or received by a group health plan that relates to past, present, or future health care or payment for health care. This Order requires employers to request vaccination status from personnel, and the information is not obtained via an employer’s group health plan. As such, the information is not subject to HIPAA protections.

On the other hand, vaccination status is medical information that is protected by other state and federal laws, including the Americans with Disabilities Act (ADA). In recent guidance, the Equal Employment Opportunity Commission (EEOC), which enforces federal workplace anti-discrimination laws (including the ADA), has confirmed that EEO laws do not prevent employers from requiring employees to provide documentation of vaccination. On the other hand, the ADA does require this information to be kept confidential and stored separately from an employee’s personnel file.

Employer Tip: Employers maintaining records of vaccination status to comply with the County Order should ensure they develop a policy that keeps these records confidential and separate from employee personnel files.

2. Employers must require personnel to immediately alert them if they test positive for COVID-19 after being at a worksite within a specified time period. Employers must then report positive COVID-19 cases to the County within 24 hours

Employers must require that all personnel immediately alert them if they test positive for COVID-19 and were present at the workplace either:

  1. Within the 48 hours prior to the onset of symptoms or within 10 days after onset of symptoms if they were symptomatic; or
  2. Within 48 hours prior to the date on which they were tested or within 10 days after the date on which they were tested if they were asymptomatic.

Reporting: If an employer learns that any of its personnel tested positive for COVID-19 after being at the workplace during the above timeframe, the employer is required to report the positive case within 24 hours to the County Public Health Department at sccsafeworkplace.org. Employers are not required to report positive COVID-19 cases for personnel who were not at the workplace within the specified timeframe or for personnel working from home. The County outlines instructions on how to report using the Worksite Case and Contact Reporting Portal.

Employers are required to comply with all case investigation and contract tracing measures directed by the County, including providing requested information, instructing personnel to follow isolation and quarantine protocols outlined by the County, and excluding positive cases and unvaccinated contacts from the workplace.

Compliance with Federal Laws: The EEOC has confirmed in recent guidance that employers are permitted to disclose the name of an employee to a public health agency (such as the Santa Clara County Public Health Department) when it learns an employee has COVID-19.

In addition, managers are allowed to report an employee’s COVID-19 diagnosis to the appropriate employer officials so they can take actions consistent with guidance from public health officials. Employers should make every effort to limit the number of people who know the name of the employee.

Employer Tip: Employers should develop a policy on how personnel should inform the employer of a positive COVID-19 diagnosis (e.g., who personnel should inform, any timing requirements) and how that information is communicated to the appropriate employer officials who are responsible for notifying the County.

3. Employers must require all personnel wear a face covering at indoor worksites. 

All employers must require their personnel to comply with the County’s Mandatory Directive on the Use of Face Coverings, effective as of May 19, 2021, which adopts the California Department of Health’s Guidance for Use of Face Coverings. While at work and indoors, personnel must always wear a face covering, regardless of vaccination status. Personnel are not required to wear a face covering if they are working alone in a closed office or room, though the County still strongly encourages the use of a face covering in this situation.

4. Employers must require all personnel who are not fully vaccinated to comply with the Mandatory Directive for Unvaccinated Personnel.

The County’s Mandatory Directive for Unvaccinated Personnel, effective as of May 19, 2021, requires employers to:

  • Ensure all personnel not fully vaccinated who are working onsite wear face coverings in accordance with the County’s Mandatory Directive on the Use of Face Coverings (see above);
  • Ensure all personnel not fully vaccinated who are in “close contact” to a confirmed COVID-19 case, or who have been confirmed to have COVID-19, are excluded from the workplace for the duration of the applicable quarantine and/or isolated periods, in accordance with the County requirements; and
  • Provide all personnel not fully vaccinated, whether working onsite or remotely, with information on how to get vaccinated (the Country provides an information sheet here).

The Order also recommends (but does not require) that employers:

  • Prohibit personnel not fully vaccinated from engaging in work-related travel (especially travel greater than 150 miles from the County); and
  • Require personnel not fully vaccinated to obtain weekly COVID-19 testing.

For more on the Order and the Mandatory Directives, see the County’s FAQ.

Employer Penalties

Employers that fail to request and record the vaccination status of its workers are subject to enforcement and may be required to pay fines of up to $5,000 per violation per day. However, as long as employers are making appropriate, good faith efforts to gather vaccination status for its personnel who are working onsite by the June 1st deadline (e.g., requesting vaccination status before June 1st), and as long as they are following up with personnel who did not respond, the employer will be considered in compliance with this requirement.

Again, it is important to highlight that the Order does not require employers to obtain the vaccination status of personnel working remotely (though an employer will be required to obtain this information if a worker later returns to work onsite in the County).

Employer Recommendations

Employers with personnel that regularly work at a facility or worksite in the County should develop a policy to comply with the Order. The policy should include the following:

  • How vaccination status will be documented (e.g., by requesting proof of their personnel’s vaccination card or by requiring personnel to fill out the County’s form);
  • Methods for keeping vaccination status confidential and stored in a place separate from personnel files;
  • How personnel will inform the employer of a COVID-19 diagnosis and which employer officials will have access to this information (keeping in mind that only a very limited number of people should have access to this information);
  • The employer official(s) responsible for notifying the County of a positive COVID-19 case (the County outlines instructions here);
  • Requirements for the use of masks indoors, in compliance with the County’s Mandatory Directive on the Use of Face Coverings;
  • Requirements under the Order for personnel not fully vaccinated, including the requirement to exclude these workers from the workplace for the quarantine/isolation period when they have close contact to a positive COVID-19 case or if they have COVID-19; and
  • How the employer will provide personnel not fully vaccinated with vaccination information (e.g., by providing the County’s vaccine information sheet).

Please note this is not an exhaustive list of all requirements and employer policies should be reviewed with an employer’s respective legal counsel.

Sequoia’s Return to Work Platform: Sequoia’s Return to Work Center has vaccination tracking capabilities that can provide a streamlined solution to address the new requirements under the Santa Clara County Order and help your business more confidently stay compliant. Please reach out to your Sequoia Client Service team, or connect with them directly in HRX, to learn more about how the Sequoia Return to Work Center can assist you to stay compliant.

Employer Required Action

Employers with personnel that regularly work at a facility or worksite in the County must:

  • Ascertain the vaccination status of all personnel working in the County by June 1, 2021.
  • Track personnel who are not fully vaccinated (including personnel whose vaccination status is unknown and personnel who decline to provide vaccination status).
    • After June 1, 2021, request vaccination status from these individuals every 14 days;
    • Provide these individuals information on how to get vaccinated; and
    • Exclude these individuals from the workplace for the applicable quarantine/isolation periods if they have COVID-19 or are in close contact to another individual with COVID-19.
  • Maintain documentation of personnel vaccination status in compliance with ADA confidentiality protections.
  • Require personnel who test positive for COVID-19 after working onsite within the timeframe specified under the Order to inform employers of the diagnosis and report positive cases to the County Public Health Department within 24 hours.
  • Require face coverings for personnel working onsite and indoors, regardless of vaccination status.

Additional Resources

 

Emerald Law – Emerald is a Senior Compliance Consultant for Sequoia, where she works with our clients to optimize and streamline benefits compliance. In her free time, Emerald enjoys stand-up comedy, live music, and writing non-fiction.