Santa Clara County’s new COVID order surprises businesses

Santa Clara County’s new order requiring businesses to determine their employees’ vaccination status is raising a host of questions as employers Wednesday began figuring out what the rules mean and how to meet a two-week deadline to compile the data before California eases COVID restrictions in mid-June.

Many employers hadn’t yet heard of the order, a first in the Bay Area that could soon free vaccinated employees from requirements to wear masks and socially distance in the workplace. But that freedom would come at the cost of employers collecting medical information and imposing stricter rules on their unvaccinated employees, an unnerving prospect for some.

“I did not have any clue,” said Akin Atak, owner of Akin’s Auto Repair in San Jose. “We haven’t heard from the county yet. It would be nice to get informed faster. They have our email.” But Atak said he welcomed the order as a step toward normalcy. Five of his six employees are vaccinated, with the other awaiting medical clearance and expecting a first shot within a week, he said.

Federal guidelines announced last week allow the fully vaccinated — those who are two weeks past their final shot — to forgo masks outdoors and in most indoor settings, such as at stores or offices. California will adopt those guidelines on June 15, when the state plans to drop most pandemic restrictions.

Santa Clara County public health officer Sara Cody said Wednesday that the new health order was imposed because the federal guidance on masking from the U.S. Centers for Disease Control and Prevention assumed “everyone knows everyone else’s vaccination status,” which “is not always the case.”  In addition, California’s workplace-safety board has yet to update its requirements. The board is meeting Thursday to consider policy changes that would let vaccinated workers drop precautions, while retaining them for workers who aren’t inoculated.

“We wanted to fill the gap,” Cody said, noting that if a vaccinated worker is exposed at work, he or she can continue working but someone whose status is unknown or who is not vaccinated must quarantine in that situation. Cody said the county is not contemplating rules requiring customers of businesses to prove their vaccination status.

Bay Area employment lawyer Sandy Rappaport of Hanson Bridgett in San Francisco said employers in general must keep vaccination status confidential, but by outlining different rules for those without shots the county’s order “seems to mandate that employers disclose employees’ vaccination status” since unvaccinated workers would have to wear masks.

Here’s what you need to know about Santa Clara County’s new worker vaccine tracking rules

Rappaport, who represents businesses, said many employers have already been collecting some vaccination-status data to plan their workplace re-openings.

“But this order does go farther than what most employers have been doing, in that it requires employers to collect the information by either reviewing an employee’s vaccination card or having an employee complete a self-certification form, and the employer has to maintain records of what has been reviewed,” Rappaport said, noting that if an employee refuses to state their status, their bosses have to keep asking every two weeks. Also, larger employers covered by the California Consumer Privacy Act likely must issue updated notices about the data collection.

“It’s a bit onerous, and the two-week turnaround for having to get it done is quite short,” she said.

Dan McCranie, owner of Ladera Grill in Morgan Hill, wasn’t aware of the new rule Wednesday, but he’s been gathering vaccination-status data on a spreadsheet for weeks and all but four of his 55 workers are fully vaccinated, he said. He said he approves of the rules, but like others, he has questions. He’s not sure how to address the confidentiality issue posed by some workers being freed from masks while others are not.

“That’s going to be fascinating,” McCranie said, “It’s kind of like a scarlet letter, a 21st century scarlet letter.”

At Umbrella Salon in San Jose, manager Jennifer Nguyen hadn’t heard of the order, either. But Nguyen said the hairdressers, who as independent contractors are subject to the order, have already been discussing their vaccinations. Everyone in the salon is either fully or half-vaccinated, and she thinks documenting their status will be easy.