On June 21, Santa Clara County’s Health Department revoked its May 18 Order (more here) and issued a new Order making it easier for employers to comply.

Now, so long as the business has already completed two rounds of “ascertainment” of the employees’ vaccine status, the business does not have to check employee vaccination status. But, for employers that have not yet completed two checks of vaccination status, the May 18 Order still applies.

Specifically, the June 21 Order provides:

• “The requirements of Sections 1, 2, 3, 4, 6, 9(c), and 10 of the May 18, 2021 Order shall remain in full force and effect with respect to any business or governmental entity (as defined in the May 18, 2021 Order) that has not completed two rounds of ascertainment of vaccination status of personnel pursuant to Section 9(c) of the May 18, 2021 Order and until the time that such business or governmental entity completes two rounds of ascertainment, whereupon the May 18, 2021 Order shall have no further force or effect with respect to that business or governmental entity.”

Records and Recommendations

It is important to note that notwithstanding the changes, all businesses must maintain their records of compliance for the duration of the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards.

The Order also includes recommendations to continue to keep the community safe from COVID-19: (1) get vaccinated; (2) continue to emphasize outdoor activities; (3) avoid travel if you’re not fully vaccinated; and (4) continue to regularly test for COVID-19 if you’re not fully vaccinated and, regardless of vaccination status, get immediately tested if you have COVID-19 symptoms.

FAQ

The County Health Department also revised its FAQs addressing employers’ ascertainment of employees’ vaccination status (linked here and reprinted in full, below) to help employers navigate the obligations. There are a number of new and helpful FAQ; they are in italics for ease of identification.

ASCERTAINMENT OF VACCINATION STATUS OF EMPLOYEES

All businesses and governmental entities are required to “complete two rounds” of ascertainment of vaccination status for their personnel. What does it mean to “complete” a round of ascertainment of vaccination status?

A business or governmental entity has completed an initial round of ascertainment of vaccination status of personnel when it has (1) received responses to a request for vaccination status from all of its employees, and (2) made a good-faith effort to obtain vaccination status from all non-employee personnel working onsite in its facilities.  With respect to a second or subsequent round of ascertainment, the business or governmental entity must receive a response from all of its employees who were not confirmed to be fully vaccinated during the prior round of ascertainment, and it must make a good-faith effort to obtain vaccination status from all non-employees working onsite in its facilities who were not previously confirmed to be fully vaccinated.

After completing two rounds of ascertainment of vaccination status, I hired new workers.  Do I need to ascertain their vaccination status?

You are no longer covered by the ascertainment of vaccination status requirement under the County’s May 18 Order, which has been rescinded.  However, employers that are covered by Cal/OSHA’s Emergency Temporary Standards “must record the vaccination status of any employee not wearing a face covering indoors.”  For more information, see the Cal/OSHA ETS FAQs here (under “Vaccines”).

Why are businesses and governmental entities required to complete two rounds of ascertainment of vaccination status and record the vaccination status of their workers?

Vaccines are the most effective way to reduce transmission of COVID-19, and to prevent people from getting sick or dying from COVID-19.  The rules that businesses and governmental entities must follow to protect workers from COVID-19 are different depending on whether a worker is vaccinated or not.  Businesses and governmental entities need to know the vaccination status of their workers so they can follow the rules, and so they can keep their workers, customers, and the community safe.

What should businesses and governmental entities do to determine vaccination status of their workers?

Businesses and governmental entities must complete two rounds of ascertainment of vaccination status to determine whether each of their employees (and any contractors or volunteers working in their facilities) is fully vaccinated or not. Businesses and governmental entities must have a record for each staff member as of the dates of ascertainment reflecting that person’s vaccination status.  The record may document a business’s or governmental entity’s review of documentation establishing vaccination status (e.g., the employee’s vaccine card), or the employee’s completed Certification of Vaccination Status. A template Certification of Vaccination Status is available here.

I have a worker who won’t tell me whether they are vaccinated? What do I do?

You must document that the worker declined to disclose their vaccination status, assume that they are not fully vaccinated, and follow all the rules that apply to workers who are not fully vaccinated.

What was the deadline for determining the vaccination status of my workers?

You were required to request and document the vaccination status of all personnel no later than June 1, 2021.  For workers who were not fully vaccinated or declined to disclose their vaccination status, you were required to request updated vaccination status every 14 days thereafter (e.g., June 15, June 29, July 13, etc.).  If you have not yet completed two rounds of ascertainment of vaccination status, you must complete the first round immediately and the second round 14 days thereafter.

Do businesses have to keep records of who is vaccinated and who is not?

Yes. Businesses and governmental entities must maintain appropriate records to demonstrate completion of two rounds of ascertainment pursuant to the County Health Officer’s May 18, 2021 Order for the duration of Cal/OSHA’s COVID-19 Prevention Emergency Temporary Standards.

What happens if I fail to complete two rounds of ascertainment of the vaccination status of my workers?

Because businesses and governmental entities have to follow different rules for vaccinated as opposed to unvaccinated employees, all businesses must complete two rounds of ascertainment of the vaccination status of their workers. 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.

Am I required to complete two rounds of ascertainment of vaccination status for my remote workers, too?

You are required to complete two rounds of ascertainment of the vaccination status of all your workers who perform any work at a facility or worksite in the county. You are also strongly encouraged, but not required, to complete two rounds of ascertainment of the vaccination status of all your other workers.

Does HIPAA apply when an employer asks an employee for their vaccination status?

No.  HIPAA applies to certain entities, such as healthcare providers and health plans, and what protected health information they can share about their patients or members under what circumstances.  HIPAA does not govern what information employers may request from their employees.

What confidentiality rules do employers need to follow when they collect and store information regarding employee vaccination status?

Generally, employers must treat this information the same way they treat other similar private information they receive from their employees, including, for example medical conditions for which they may request time off, etc. 

Do workers have to disclose their vaccination status to their employer?

Under current County rules, employers must complete two rounds of ascertainment of vaccination status, but employees may decline to provide that information. The sample Certification Form specifically includes that option for employees.  If an employee declines to provide their vaccination status, the employer should assume the employee may be unvaccinated and follow State and local requirements for unvaccinated employees.

Do employers have to provide information regarding their employees’ vaccination status to the County Public Health Department?

No, employers do not provide this information to the County.  Instead, they are required to collect it and have it available to demonstrate their compliance with this requirement.  

Under what circumstances would an employer have to share employee vaccination information?

Generally, employee vaccination information is treated as confidential, but can be shared in certain instances.  For example, an employer may be asked to demonstrate compliance with the requirement related to employee vaccination status if the County receives information suggesting that the employer has not complied.  The State Occupational Safety and Health Administration (Cal/OSHA) may also request documentation from an employer demonstrating that they have complied with all of the requirements specific to employees who are vaccinated versus unvaccinated, and knowing which employees are vaccinated will allow employers to comply with those requirements. 

What is the simplest way to comply with the requirement to determine employees’ vaccination status?

Compliance with this requirement takes only a few simple steps.  One simple way for a business to comply is by doing the following:

1. Provide staff members a copy of the one-page form the County has provided to assist businesses in meeting this requirement.  It should take employees no more than a minute or two to fill out the form.
2. Collect the forms and store them in the same way you store confidential employee information like documents requesting medical leave, reasonable accommodations, etc.
3. Provide employees who are not vaccinated or declined to state whether they are vaccinated an information sheet on vaccination, which is available here.

I have a contractor who is doing work at my business.  Do I have to determine the vaccination status of all the contractors’ employees?

You can rely on contractors to complete two rounds of ascertainment of the vaccination status of their own employees, but you should confirm with your contractors that they have complied with this requirement.

I do not have any employees based in Santa Clara County.  However, some of my employees travel into the county infrequently for work.  Do I need to ascertain those employees’ vaccination status?

No.  You only have to determine vaccination status for workers who are based at worksites in Santa Clara County or who regularly work at worksites in the county.

I manage a non-profit with a large number of volunteers.  Some of these individuals volunteer regularly at our worksites in the county.  However, many of these people are one-time volunteers.  Do I have to ascertain the vaccination status for all of our volunteers?

You only have to complete two rounds of ascertainment of the vaccination status of volunteers who regularly work at worksites in the county.  Therefore, you would not have to ascertain the vaccination status for one-time volunteers.

My company owns a building in the county where our employees work.  We lease several floors to other businesses who have offices completely separate from my company’s office, other than common areas like the first-floor lobby and elevators.  Is my company required to ascertain the vaccination status of the employees of those separate businesses?

If your company leases office space to other businesses that are completely separate from your own company’s office, you do not have to ascertain the vaccination status of your tenants’ employees.  But the tenant employer is responsible for completing two rounds of ascertainment of the vaccination status of its own employees.

I manage a grocery store in the county, and we have a vendor onsite who runs a small coffee counter inside the store.  Do I have to ascertain the vaccination status of the employees of that coffee counter? 

Yes, because the coffee vendor regularly provides goods and services in your business’s worksite, your business must complete two rounds of ascertainment of the vaccination status of the vendor’s employees.  You can, however, rely on the vendor to determine its own employees’ vaccination status, if you confirm with the vendor that it has complied with this requirement. 

Sale representatives occasionally come into my business to market their products.  Does my office have to ascertain the vaccination status of these sales representatives?

If these  sales representatives do not work regularly in one of your offices, you are not obligated to ascertain their vaccination status.    

I requested vaccination status from all of my employees, but some of them did not respond by June 1.  Will I be fined?

So long as a business made  appropriate, good faith efforts to gather vaccination status information for its personnel by the June 1 deadline, and followed up with individuals who did not respond, the business will be considered in compliance with the requirement.  Businesses should be similarly diligent in gathering this information as they would be in gathering information needed to comply with other legal requirements applicable to businesses—e.g., employee time sheets, payroll records, and W-9 and W-4 forms.

For assistance navigating this or other COVID-19 health and safety orders, contact your Baker McKenzie employment attorney.