The new Order (and the Directives and Guidance it references) requires employers to:
Determine the vaccination status by June 1, 2021, of all personnel (including employees, contractors, vendors, volunteers and all other individuals who regularly provide services onsite) who perform any work at their facility or worksite in the County;
Report within 24 hours to the County Public Health Department after learning of any personnel who tested positive for COVID-19 and were at the workplace within a certain timeframe;
Continue to implement safety measures;
Follow industry-specific guidance from the State and
Provide all personnel who are not fully vaccinated with information on how to get vaccinations.
As expected, the Order also ends the work-from-home mandate previously in place in Santa Clara County, which required all businesses to maximize the number of people working remotely. Finally, the Order states that a fully vaccinated workplace will not be required to wear masks indoors or follow social distancing guidelines, but a mixed vaccinated staff will have to follow more complex restrictions. This is, however, subject to California/the Occupational Safety and Heath Administration’s (OSHA) COVID-19 Prevention Emergency Temporary Standards and the California Department of Public Health’s Guidance on the Use of Face Coverings, which continue to require face coverings in a workplace setting. We anticipate changes to these requirements soon, but for now employers should continue to require face coverings in the workplace.
The Order does not impose a mandatory vaccination requirement.
The new Order requires reference to other Orders/Directives/Guidance, including the Mandatory Directive on the Use of Face Coverings, Mandatory Directive for Unvaccinated Personnel and the California Department of Public Health’s (CDPH) Guidance for the Use of Face Coverings. Therefore, employers should be very careful in navigating through the complexities associated with compliance with the new Order.
In the Order, the County recognizes that “[t]he public health threat from COVID-19 is decreasing in the County” but cautions that “COVID-19 continues to pose a risk especially to residents of Santa Clara County who are not fully vaccinated.” Therefore, certain safety measures are necessary to protect against COVID-19 cases and deaths.
WHO DOES THE ORDER APPLY TO?
This Order applies to “[a]ll individuals, businesses, and other entities in the County,” and it requires that “individuals who do not currently reside in the County must comply with all applicable requirements of the Order when they are in the County.” This includes employers of all sizes, including those working remotely or in-person.
For purposes of this Order, an employer’s “personnel” is defined to mean employees, contractors, subcontractors, independent contractors (such as “gig workers” who perform work via a business’s application or other online interface), vendors who sell goods onsite, volunteers and all other individuals who regularly provide services onsite at the request of the business.
Activities Encouraged to Occur Outdoors. Businesses and governmental entities “should consider moving operations and activities outdoors” where the risk of transmission is low, especially if the patrons are unlikely to be vaccinated. For restaurants with outdoor seating capabilities, for example, continued availability of outdoor seating would be important, especially if patrons are unlikely to be vaccinated.
Reporting Personnel Contracting COVID-19. Businesses and governmental entities must require that their personnel immediately alert the business or the governmental entity if they test positive for COVID-19 and were at the workplace (1) within 48 hours prior to the onset of symptoms or within 10 days after the onset of symptoms if they were asymptomatic, or (2) within 48 hours prior to the date on which they tested or within 10 days after the day they were tested if they were asymptomatic. If the business or governmental entity learns of a confirmed positive case in this timeframe, that entity is required to report the case within 24 hours to the County Public Health Department at https://covid19.sccgov.org/business-guidance#employee.
Ascertaining Vaccination Status of Personnel. Businesses and governmental entities are required to determine the vaccination status of all personnel (which includes employees, onsite contractors and volunteers) who perform any work at their facility or worksite in the County and they are also encouraged (but not required) to determine the vaccination status of all other personnel (such as remote workers). Until the status is determined, the personnel must be treated as unvaccinated. Those who decline to provide their vaccination status are to similarly be treated as unvaccinated. Businesses and governmental entities must complete the assessment of the vaccination status of their personnel within 14 days of the date of the effective date (May 19, 2021) of this Order, or June 1, 2021. The businesses and governmental entities must also maintain appropriate records (such as self-certification forms) to demonstrate that they are complying with this provision. Employers may choose to use the County’s Self-Certification of Vaccination Status form for purposes of ascertaining the vaccination status of their employees. For more information on ascertaining the vaccination status of personnel, employers should consult the FAQ on ascertainment of vaccination status.
Social Distancing Protocols. Businesses and governmental entities no longer need to submit their Social Distancing Protocols to the County’s Public Health Department; however, they must continue to comply with requirements imposed by Cal/OSHA’s COVID-19 Emergency Prevention Regulations, which has not yet lifted the physical distancing requirement but is expected to do so soon. Employers are required to follow the stricter of the two requirements. Currently, Cal/OHSA does not distinguish on the basis of a person’s vaccination status for physical distancing requirements.
Rules for Personnel Not Fully Vaccinated. For those who are not fully vaccinated (or do not disclose their vaccination status), they must:
What is “Fully Vaccinated?” The Order defines “fully vaccinated” to mean two weeks after completion of the entire recommended series of vaccination with a vaccine authorized to prevent COVID-19 by the US Food and Drug Administration.
Importantly, this Order does not impose a mandatory vaccination requirement on employers. In addition, fully vaccinated staff in a workplace will not be required to wear masks indoors or follow social distancing or quarantine guidelines, subject to Californiat/OSHA’s COVID-19 Prevention Emergency Temporary Standards and the California Department of Public Health’s Guidance on the Use of Face Coverings, which still require the use of face coverings in a workplace setting. However, we expect changes to this requirement to follow soon.
WHAT DO THE OTHER DIRECTIVES THE ORDER REFERENCES REQUIRE?
Fully vaccinated. For fully vaccinated persons, face coverings are not required outdoors except when the person is attending crowded outdoor events. As further defined in the CDPH’s Fully Vaccinated Persons Guidance, a fully vaccinated person may (1) visit, without wearing a mask or physical distancing, with other fully vaccinated people indoors or outdoors (outside of a workplace setting), and (2) visit, without masks or physical distancing, unvaccinated people from a single household who are at low risk of severe COVID-19 disease in indoor and outdoor settings.
Unvaccinated. For unvaccinated persons, face coverings are required outdoors any time physical distancing cannot be maintained.
Indoor settings (regardless of vaccination status). In indoor settings outside of a person’s home, including on public transportation, face coverings are required regardless of a person’s vaccination status.
Exemptions. The following individuals and settings are exempt from the CDPH’s Guidance:
Persons who are alone in a car or solely with members of their own households;
Persons who are working alone in a closed office or room;
Persons who are obtaining a medical or cosmetic service involving the nose or face for which the temporary removal of a face covering is necessary to perform the service;
Workers who wear respiratory protection or
Persons who are specifically exempted from wearing face coverings by other CDPH guidance.
Persons who are younger than two years old; persons with a medical condition, a mental health condition, or a disability that prevents wearing a face covering; persons who are hearing impaired or communicating with a person who is hearing impaired; persons for whom wearing a face covering creates a risk to the person related to their work, as determined by local, state, or federal regulators or workplace safety guidelines. This group of individuals are exempt from face covering requirements at all times. Persons who are exempt from wearing a face covering because of a medical condition but employed in a job involving regular contact with others must wear a non-restrictive alternative, such as a face shield or a drape, as long as their condition permits this.
Working onsite wear face coverings in accordance with the Directive on the Use of Face Coverings;
Who are a “close contact” to a confirmed case, or who have been confirmed to have COVID-19, be excluded from the workplace for the quarantine and/or isolation period and
Be provided with information on how to receive a vaccination, whether they are working onsite or remotely.
Through this Directive, the Health Officer urges (but does not require) businesses and governmental entities to prohibit all personnel not fully vaccinated from engaging in any work-related travel (especially greater than 150 miles from the County) and urges employers to require all personnel not fully vaccinated to obtain weekly PCR testing for COVID-19 or daily antigen testing with COVID PCR confirmation of any positives.
In relationship to the Order and Directives, the County has also provided a FAQ page to address questions.
WHAT ARE THE PENALTIES FOR FAILING TO COMPLY?
A violation of a provision of this Order constitutes a public nuisance and is punishable by fine, imprisonment or both. Any business that fails to ask about the vaccination status of its workers by June 1, 2021, may be required to pay fines of up to $5,000 per violation per day.
We are here to help. Our McDermott Will & Emery employment team of lawyers are tracking the latest state and local developments and are here to assist you with practical and protective guidance for navigating these complex workplace and business issues.