On Monday, The Silicon Valley Organization (formerly The San Jose Silicon Valley Chamber of Commerce) hosted a 30-minute Q&A session on Zoom with county Counsel James Williams to field questions about the new mandate. Nearly 300 participants, including college deans, members of various chambers of commerce, city officials and businesses small and large — from day care facilities to tech giants like Amazon — were among the digital audience, seeking clarification.
One point was emphasized early on by Williams during Monday afternoon's session: The mandate is not a requirement for anyone to go and get vaccinated.
"There's nothing in the order that says all personnel must get vaccinated," Williams said.
The order also does not require businesses to disclose the information to the broader workforce within the company, to the public or to the Public Health Department, he added. It only requires employers to keep track of the vaccination status of their personnel.
Complying with the order entails asking employees for their vaccination status. An employee who is considered "fully vaccinated" has reached the two-week mark after receiving the second shot of the Moderna or Pfizer-BioNTech vaccine or the single shot of the Janssen/Johnson & Johnson vaccine. Employees may respond with "I'm fully vaccinated" or "I decline to answer."
Companies' "personnel" consist of all workers who regularly come to a work site in the county. This can include volunteers or unpaid interns. For contract workers, Williams clarified that the responsibility falls upon the vendor of the contractor to record the employee's vaccination status. However, employers will still have to check that the vendor has done so.
The order does not apply to tenants, visitors to a work site or customers.
If an employee declines to answer, then employers should assume that he or she did not get vaccinated, according to Williams. Employers have to follow up with those workers 14 days later, along with anyone who was only partially vaccinated.
Some participants at the Zoom session questioned the point of the order, if businesses are not required to report the data to the county or to their own larger workforce.
Williams said one of the main reasons is because public health rules differ for those who are fully vaccinated and for those who are not. Knowing who is vaccinated will help employers to apply those rules accordingly.
"For example, right now, if you're fully vaccinated, and you're in contact with a COVID-19 case, you do not need to quarantine. You can continue to come to work (and) you can continue to work, but that doesn't apply if you're not fully vaccinated," he said.
Mask requirements, which were recently updated following new guidance from the Centers for Disease Control and Prevention, will also be based on vaccination status.
In the draft of new regulations put in place by the state's workplace safety agency Cal/OSHA, if everybody in a room is vaccinated, then no one will have to wear a mask indoors, and physical distancing rules and other requirements can be more relaxed, Williams said.
More broadly, Williams suggested that the new order is an effort to encourage more workers to get vaccinated.
"It's because vaccination is the name of the game right now," he said. "It is the best tool that we have available to us to prevent us (from) having a resurgence of cases like we've seen in other countries. It's the best tool for us being able to keep businesses open and avoiding another surge that's going to lead to shutdowns, which I know nobody on this call ... wants to have happen again."
Still, concerned lingered among participants of Monday's Q&A session.
A few business owners, for example, were troubled that asking about one's vaccination status would violate the Health Insurance Portability and Accountability Act (HIPAA). In this case, Williams said, HIPAA is not applicable since the law only concerns "health plans or health care providers with respect to their patients or clients."
Others were worried that asking the question every two weeks may make some employees feel they're being harassed and that having certain rules in place based on one's vaccination status would be a form of discrimination.
"It's a very, very simple question that should take folks no more than 15, 20 seconds to be able to answer," Williams said in response. "Provided that you're just asking folks to answer that question and move on, that should be a complete nonissue."
In addition, Williams suggested that having the 14-day follow-up requirement is more geared towards people who do end up changing their minds or have gone from partially to fully vaccinated.
Robert Lindo, the vice president of Casino M8trix in San Jose and board member of The Silicon Valley Organization who moderated Monday's session, raised a concern that many business owners have maintained since a mountain of regulations were placed on them throughout the pandemic: How can employers make sure they're complying and not get fined?
While violating a health order is a misdemeanor, Williams said, no one's been prosecuted for violating a COVID-19 health order.
"We're just looking for people to be acting in good faith," he said. "If we receive a complaint, you have to be able to, if asked, show that you demonstrated good faith in implementing things. ... Most of the provisions of the health orders have always been reliant on that."