On May 18, 2021, Santa Clara County issued a new Public Health Order establishing revised safety measures intended to reduce the spread of COVID-19 as the County moved to the more lenient Yellow Tier of the State’s Blueprint for a Safer Economy. Below are the key takeaways for employers.
The new Public Health Order replaces the October 5, 2020 Revised Reduction Order and eliminates many of its requirements, including the following:
- 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 to be submitted to the County Public Health Department: Businesses and governmental entities must, instead, comply with any State rules applicable to their business, including the Cal/OSHA’s COVID-19 Emergency Prevention Regulations applicable to most businesses.
- The local Mandatory Directive on Capacity Limitations has been eliminated: There are no longer local rules related to capacity. For information on what is allowed in the Yellow Tier, see the State’s Blueprint for a Safer Economy and the State’s Industry Guidance to Reduce Risk webpage.
The new Public Health Order also replaces prior safety restrictions with a few focused requirements for all businesses and governmental entities, including the following:
- Ascertain and record the vaccination status of onsite personnel: The Order requires businesses and governmental entities to determine the vaccination status of all personnel who perform any work at a facility or worksite in the County. It is also strongly encouraged, but not required by the Order, that the vaccination status be determined for all other personnel, including those working remotely. The County has issued a sample Certification of Vaccination Status that can, but is not required, to be used for this purpose.
- Comply with the Health Officer’s Mandatory Directive for Unvaccinated Personnel: Any business or government entity that has personnel who are not fully vaccinated or who decline to provide their vaccination status must comply with the requirements in the County’s Directive.
- Comply with the Health Officer’s Mandatory Directive on the Use of Face Coverings: All businesses and governmental entities must ensure that personnel, customers, and other persons at facilities or worksites they control comply with the rules in the County’s Directive.
- Continue to promptly report COVID-19 cases among personnel to the Public Health Department: All businesses and governmental entities must continue to comply with the County’s reporting requirements for COVID-19 cases.
The most time sensitive requirement of the new Public Health Order is the requirement that all businesses and governmental entities ascertain and record the vaccination status of all personnel by June 1, 2021. “Personnel” is broadly defined to include employees, contractors, vendors, volunteers, and other individuals who regularly provide services onsite at the request of the business. Personnel may decline to disclose their vaccination status, but such persons must be treated as unvaccinated. After June 1, businesses and governmental entities must obtain updated vaccination status of all personnel who were not fully vaccinated every 14 days (e.g., June 15, June 29, July 13, etc.). Although employers do not report the vaccination information to the County, they are required to collect the information and maintain appropriate records to demonstrate compliance with the Order. The failure to comply with the Order is a misdemeanor punishable by fine up to $5,000 per violation per day, imprisonment, or both.
Employers must still be sure to comply with any applicable State rules, including the Cal/OSHA’s COVID-19 Emergency Prevention Regulations applicable to most businesses. Cal/OSHA’s Standards Board is currently considering new safety rules that, if enacted, will differentiate between what is required in the workplace for those who are and are not fully vaccinated.
For further information about the ascertainment of vaccination status and other revised safety measures implemented by the new Public Health Order, the County has issued Frequently Asked Questions on its webpage. The County is continuing to update these FAQ’s, so employers may find it helpful to check the website periodically for new information.
What Should Employers Do Now?
- Implement a protocol to ascertain and record the vaccination status of all personnel by June 1, 2021 and every 14 days thereafter for personnel who are not fully vaccinated: Vaccination status is private medical information, so employers are cautioned to handle the information with care to ensure confidentiality. Employers are also cautioned not to ask questions other than vaccination status, such as asking why someone did not receive the vaccine, without first consulting legal counsel because such questions may run afoul of state or federal laws prohibiting discrimination, such as disability or religious discrimination.
- Develop plan to reduce telework, if desired: Businesses are no longer required to maximize the number of people who work remotely, so employers may develop a plan to bring their workforce back to the extent they wish to do so.
- Revise safety measures to conform to the new Public Health Order: Employers should review and update their COVID-related safety measures to conform to the revised requirements of the Order.