Employment Law Alert: Santa Clara County Requires Employers to Ascertain Vaccination Status of All Personnel

On May 18, 2021, Santa Clara County issued a new Health Order, which went into effect May 19, 2021. Most significantly, the new Order requires employers to ascertain the vaccination status of “all personnel” by June 1, 2021.
Under the Health Order “personnel” is defined as: “the following individuals who provide goods or services or perform operations associated with a business in Santa Clara County: employees; contractors and sub-contractors (such as those who sell goods or perform services onsite or who deliver goods for the business); independent contractors (such as ‘gig workers’ who perform work via the business’s application 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 business.”

Employers must have a record for each personnel reflecting that person’s vaccination status. The record may document an employer’s review of documentation establishing vaccination status (e.g., the employee’s vaccine card), or the employee’s completed Certification of Vaccination Status. The County has published a sample Certification of Vaccination Status form and FAQs to assist employers with the new Order. Under the Order, requiring proof of vaccination is optional. Records regarding an employee’s vaccination status must be treated as confidential.
Until a person’s vaccination status is ascertained, they must be treated as unvaccinated and follow State and local requirements for unvaccinated employees. Personnel who decline to provide vaccination status must also be treated as unvaccinated. Thereafter, employers must obtain updated vaccination status for all personnel who were not fully vaccinated every 14 days. Employers also need to provide employees who are not vaccinated or declined to state whether they are vaccinated with information on how to get vaccinated. The County has provided a sample compliant information sheet, available at www.sccsafeworkplace.org.

Any business that fails to ask about and record the vaccination status of its workers is subject to enforcement, and may be required to pay fines of up to $5,000 per violation per day.