Employers must record workers' vaccination status | May 28, 2021 | Palo Alto Weekly | Palo Alto Online |

Palo Alto Weekly

News - May 28, 2021

Employers must record workers' vaccination status

Business owners raise questions over privacy, enforcement, compliance

by Lloyd Lee

A new Santa Clara County public health mandate has many business owners concerned about privacy, enforcement and compliance: By June 1, employers will have to obtain a record of their workforce's COVID-19 vaccination status or face a $5,000 fine per day.

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."

Email Editorial Assistant Lloyd Lee at [email protected]


Posted by chewie
a resident of University South
on May 25, 2021 at 1:36 pm

chewie is a registered user.

Is this going to effect the gubernatorial recall this year? People are already pretty pissed off by the effects of the shut down.

Posted by Bystander
a resident of Another Palo Alto neighborhood
on May 25, 2021 at 1:38 pm

Bystander is a registered user.

Treating employees as different due to their status has to be illegal, doesn't it? Making employers collect this information and passing it on to the county, must likewise be illegal, I would imagine. If nothing else it is very time consuming and onerous for employers and who is to say whether employers tell the truth anyway!

Additionally, Santa Clara County has done it again. Has to be different from all other counties. Has to go one step further!

Posted by Carla
a resident of Downtown North
on May 25, 2021 at 1:51 pm

Carla is a registered user.

The requirement is not time-consuming nor onerous in the least. The employee must fill out a simple form, and that is all.

It is also correct for an employer to know if an employee has not had the vaccine because that precise employee needs to continue to follow protocol for his safety and that of others at the workplace.

Posted by marc665
a resident of Midtown
on May 25, 2021 at 2:48 pm

marc665 is a registered user.

Given that the state already has a database (or is supposed to) of everyone who has been vaccinated, why are they mandating that businesses duplicate the effort?


Posted by Jeremy Erman
a resident of Midtown
on May 25, 2021 at 3:16 pm

Jeremy Erman is a registered user.

I don't understand how this works--does an employer have to ask everyone currently working for them, or everyone still on their books who may potentially work for them in the coming year? If new workers are hired, or old workers return to jobs they were shut out of during the pandemic, what is the timeframe for verifying these people? The information presented seems to assume that an organization's workforce is a static group of people, not one that frequently changes.

Posted by William Hitchens
a resident of Mountain View
on May 25, 2021 at 4:45 pm

William Hitchens is a registered user.

I hope that this mandate includes ALL public employees, law enforcement & fire department employees, and ALL school employees AND students and their parents. Public and school unions must not be allowed to interfere with our government's legal right to provide for and enforce proper public health safety rules --- like universal vaccination AND mandatory 14 day quarantine (or is it 10?, or 7?) when exposed to Covid-19 and at risk of spreading infection. And, those vaccinations should be made public and not kept hidden. We need to know who might be a carrier so we can avoid them. We need a two-tier system --- the vaccinated, and the unvaccinated. And lying about vaccination status for personal gain should be a felony.

Just get the shot and protect the rest of us. That is called "moral and ethical civic duty". And that moral and ethical public health objective "trumps" (hah!) so-called individual rights, in this case anyway. As a libertarian, I'm all for individual rights, AS LONG AS I DO NOT HARM ANYONE ELSE IN THE PROCESS --- OTHER THAN SELF DEFENSE.

Posted by Hinrich
a resident of Old Palo Alto
on May 25, 2021 at 7:23 pm

Hinrich is a registered user.

There is still much to discover but questions remain about the effectiveness and necessity of wholesale lockdown pushed by county and state health authorities. It's certainly unprecedented and it certainly has cost untold damages. If the emergency is diminished now, with effective vaccines, what is the justification for continuing this regime of mandates? COVID should not now justify continued expansion of the surveillance state and continued burdens on both employers and employees. Today tracking vaccinations, tomorrow tracking....what? We have given far too much, too easily to Facebook and others who would demand tracking everything - time to say no.

Posted by Jane
a resident of Ventura
on May 25, 2021 at 10:58 pm

Jane is a registered user.

If this doesn't include people's entire immunization record including measles, smallpox, and TB among other diseases (which are far worse than covid) it is merely theater and here's hoping for a legal challenge. Gubernatorial recall is a good start though.

Posted by Paul Brophy
a resident of Professorville
on May 26, 2021 at 6:20 am

Paul Brophy is a registered user.

This requirement, like others previously, have been established solely by Santa Clara County and not by the state or federal government. The County has consistently set more restrictive rules on businesses, churches, and schools than any county in the state and in some cases in the entire country. Over 99% of fines levied by Bay Area counties have been levied just by our county. The result of this extraordinary behavior by the County Manager, Health Director, and County Attorney is the highest Covid death rate of any Bay Area county. Instead of doing the hard work of minimizing infection at senior residences, nursing homes, correctional facilities, and low income neighborhoods, County government has imposed punitive restrictions that provided no benefits and great financial and psychological costs to broad sections of the community.

When will our Supervisors start to do some supervising?

Posted by Bystander
a resident of Another Palo Alto neighborhood
on May 26, 2021 at 6:56 am

Bystander is a registered user.

Santa Clara County has definitely overstepped its authority, I concur. If this was a worthwhile thing to make us safe then it would have happened elsewhere. Running a business is hard enough and the restrictions that the county has put on employers with this is divisive and anti-social.

Posted by Lynn James
a resident of another community
on May 26, 2021 at 11:57 am

Lynn James is a registered user.

Santa Clara County is defiantly crossing a line. This is bully/scare tactic to force people to take a vaccine that should be our right to choose. How at a business level does it make it the employers responsibility to keep track of an employees personal medical decision? When has anyone had to bring an immunization card with them to prove against polio, hep B, tetanus or any other vaccines we have had? As a reminder, the FDA website TODAY, the Covid vaccines (all 3)are still only recommended. They are also NOT FDA approved, only approved for emergency use. With so many side effect still unknown, long term effects unknown and the efficiency unknown, why are we now having an employer take on the responsibility of tracking and reporting for the county? This is discrimination. In a statement above someone says that "It only takes 15 to 20 sec to ask the question, just answer and move on" well it takes the same amount of time to ask someone about their religion, sexual origination, Age, national origin, family status, pregnancy and the list goes on. At what point will an employer not have to worry about being sued because an employee felt so much pressure (being asked about vaccination status then again in 14 day etc) that they get the vaccine to make it stop and there is a horrible outcome (or even a mild one) and the blame falls on the employer who made it a "hostile work environment" with the pressure, bulling, scare tactics? And yet the county is the one forcing the employer to comply or pay fines (that no one can afford due to the random shut downs). Now I do not say this lightly, I say this as a wife of an extremely sick husband that I have to protect from Covid. As someone who has a friend who was fully vaccinated and 6 weeks later ended up on a ventilator due to Covid,and another who has an 96yr old grandmother who has more health issues than I can list, got Covid and barely knew she had it. We don't know how it will effect us, so we decide for ourselves

Posted by CalAveLocal
a resident of Evergreen Park
on May 28, 2021 at 3:47 pm

CalAveLocal is a registered user.

So, its "your right to choose" whenever or not to get vaccinated.
How about the rights of people who are concerned about getting sick and have a right to know if they are in danger or not by being in close proximity with someone who is NOT vaccinated? Their rights don't matter why exactly?

Posted by Jane
a resident of Ventura
on May 28, 2021 at 5:24 pm

Jane is a registered user.

@CalAveLocal zero risk is not possible and you don't have an absolute right to feelings of safety at the expense of others' right to personal health, privacy and autonomy.

If you are afraid you can take simple measures to protect yourself such as wearing a respirator and face shield at work that don't compromise others.

Posted by BBonk
a resident of Old Palo Alto
on May 28, 2021 at 7:07 pm

BBonk is a registered user.

This is wild. The purpose of the law is to "help employers to be able to apply those rules accordingly" by threatening $5000/day if employers do not collect health information on employees (which the employer could later be sued for)? Why not just provide the help without the mandate? I am a public health professional and this makes no sense.
There are instances where employers must keep records of employee vaccine and health-related information (example: hospitals must have records that healthcare workers have certain immunizations). These are risk-based requirements guided by public health data and regulated by Cal/OSHA and others. Additionally, the employer (anyone who interacts with the employee's vaccination/health data) is required to complete HIPAA training. I would like to know what public health guidance SCC referred to when making this decision and how they plan to roll out appropriate training for the collection and maintenance of employee health information.

Posted by Feminist
a resident of Evergreen Park
on May 28, 2021 at 7:42 pm

Feminist is a registered user.

Zero risk is not possible. But knowing that someone is unwilling to take reasonable precautions to protect themselves or others would definitely help many people decide what precautions to take around these people. If I were a service business owner such as a restaurant or a spa, I would want to know if I need to make sure that my customers continue to wear masks to protect these individuals that are unable to protect themselves. [Portion removed.]

Posted by chini
a resident of Midtown
on May 30, 2021 at 8:47 am

chini is a registered user.

The directive of Santa Clara County and the silence of Supervisors and others seems to be a deplorable abuse of power to cover-up their own failures.

Instead of setting a deadline for themselves to vaccinate all of people, not just citizens, they impose unreasonable deadline on others.

Instead of setting a clear message and goal to control the disease and prevent its spread they play disingenuous social games with their messaging and power. The heroes who worked for over a year WITHOUT a vaccination were told that wearing the mask is as best as a vaccination, and that was based on "science". Now why can't people continue to wear mask whether vaccinated or not at their workplace to protect themselves from virus. Don't forget the flu was nonexistent in 2020 due to mask wearing - no twindemic!

Will Santa Clara county or CA govt ask employers to account flu shots next?

The games played by officials and doctors (spin doctors) during the pandemic has eroded so much trust that, as a country, it is unclear whether we can come together should there be. God forbid, another next pandemic or a wave.

If officials and certain publicity-seeking academics could focus solely on controlling the diseases and not play politics we could have saved lives. About a year ago, the trial data from first dose of Moderna was published that it was safe and effective but the (spin) doctors at NIH and CDC claimed that it was not good enough to distribute. Now they advocate giving just ONE dose and postponing second dose for weeks to countries far and wide to save lives. Could that approach have saved lives in the U.S if the single dose was distributed last year when it was found safe? Is critical reasoning dead?

Posted by Bystander
a resident of Another Palo Alto neighborhood
on Jun 1, 2021 at 8:15 am

Bystander is a registered user.

Since today is the deadline for this, the question has to be asked "how's it going?"

Has the Weekly, as a SCC employer received all this information from its employees, contractors and volunteers?

Has the school district PAUSD as a SCC employer, received all this information from its employees, contractors and volunteers? Every volunteer?

Has the City as a SCC employer received all this information from its employees, contractors and volunteers? Every gardener, street sweeper, janitor?

Has the City of Santa Clara received this information from all its employees? Contractors? Volunteers?

Has every employer done this or is it a case of procrastination?

I have heard from Google employees that they have not been asked?

Or is it just those small retail establishments that the media have been interviewing been the only ones that the County is interested in giving extra paperwork with fears of fines?


Moderator's Note:

Yes, all employees of Embarcadero Media submitted their required certification as required by the county.

Posted by Bystander
a resident of Another Palo Alto neighborhood
on Jun 1, 2021 at 1:32 pm

Bystander is a registered user.

The question has to be asked as to why this is only being done in SCC and not other counties? Web Link Report from KTVU

Posted by Bystander
a resident of Another Palo Alto neighborhood
on Jun 2, 2021 at 7:00 am

Bystander is a registered user.

Thank you moderator for that information.

I still think there is more to come on this.

Posted by Jennifer
a resident of another community
on Jun 2, 2021 at 1:28 pm

Jennifer is a registered user.

Covid hit Santa Clara County harder than anywhere in the Bay Area. It stands to reason they'd be stricter. This isn't hard to figure out... if you you stop and think about it. Whether or not you agree with it or think it's fair... well.

Posted by Bystander
a resident of Another Palo Alto neighborhood
on Jun 4, 2021 at 3:28 pm

Bystander is a registered user.

Now we have Cal Osha joining in with their 2 cents.

The idea that a small business where one person is not vaccinated causes all employees to wear masks will ostracize someone who is not vaccinated. Perhaps that is the real reason for this rule, peer pressure! But think of how someone who may have an extremely good reason for not being vaccinated will feel in this, someone perhaps with severe medical allergies and someone else with severe asthma both of whom have the right to be able to work with others.

Then there is the fact that people visiting the business do not have to wear a mask. This is not just retail, but businesses that have deliveries, that have clients visiting, etc.

The mask police are in for a very difficult task monitoring this.

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