Seyfarth Synopsis: Santa Clara recently issued an order that requires employers to ascertain and document their workers’ vaccination status by June 1, 2021. This directive has left businesses confused and concerned, with little time to comply. Below is an overview of what employers must do, by when they must do it, and the penalty for noncompliance.

On May 18, 2021, Santa Clara County moved into California’s coveted yellow tier, allowing more businesses to open and others to increase capacity. That same day, the County issued an update to its COVID-19 Health Order. One portion of the order caught the eyes of employers, and it was not love at first sight: By June 1st, all businesses within the County must determine whether their employees, contractors, and volunteers have been vaccinated. Failure to ask and record the responses can carry a dizzying fine of up to $5,000 per violation per day.

To Have and To Hold: Employer Obligations Under the Order

In addition to ascertaining the vaccination status of “all personnel,” businesses and governmental entities “must obtain updated vaccination status for all personnel who were not fully vaccinated every 14 days” and maintain appropriate records to show compliance. This mandate means that Santa Clara County businesses must, every two weeks for the foreseeable future, ask their previously unvaccinated workers if they have now been fully vaccinated.

The order does not require that anyone get vaccinated.  Rather, the order simply requires businesses to seek and record vaccination status. So a business incurs no penalty if employees, contractors, or volunteers refuse or fail to answer, so long as the business records the declination to respond, and then treats these people as if they are unvaccinated.

A business may comply with the order by requiring workers to fill out a short self-certification on a County-provided form. This method may be easier and more private than requiring a copy of the individual’s CDC-issued vaccination card, although that method will also suffice. Any records of vaccination status should be maintained as confidential medical records.

Absence Makes The Heart Grow Fonder, and the Legal Obligations Fewer

Despite the order’s requirement to ascertain the vaccination status of “all personnel,” the FAQs clarify that the provision applies only to “workers who perform any work at a facility or worksite in the county. That said, businesses, though not required, are “strongly encouraged … to determine vaccination status for all other personnel.” With the imminent reopening of California’s economy and a continued return to the workplace, it may make sense for businesses in Santa Clara County to ask remote workers their vaccination status, or to have a plan in place for determining their status before they enter business premises.

Workplace Solutions

The Santa Clara order stands in contrast to legislation that has been proposed outside of California to restrict a business’s ability to ask about individuals’ vaccination status. This order underscores the difficulty (if not impossibility) of a one-size-fits all approach to COVID-19 related plans—even within California. If you have questions about adhering to State and local restrictions, please know that Seyfarth’s Employment Team is here to help.

Edited by Coby Turner