Santa Clara County Phases Out Vaccination Benchmarking Mandate

On May 18, 2021, the Santa Clara County Health Officer issued an order (May Order) that included a first-of-its-kind vaccination benchmarking mandate. On June 21, 2021, the Health Officer issued another order (June Order) phasing out the May Order. The June Order explains that the Health Officer is phasing out the May Order because over 80% of Santa Clara County residents aged 12 and older have received a first dose of a federally approved COVID-19 vaccine, over 71% of those residents are fully vaccinated, and the current best available information demonstrates the efficacy of vaccination in preventing COVID-19.

Phasing Out the Vaccination Benchmarking Mandate

The May Order requires businesses and governmental entities (Covered Entities) to ascertain the vaccination status of all personnel. It defines personnel as including employees, contractors, subcontractors, independent contractors (including “gig workers”), vendors permitted to sell goods onsite, volunteers, and other individuals who regularly provide services onsite at the request of the business. Additionally, the May Order requires Covered Entities to request an updated vaccination status every 14 days from personnel who are not fully vaccinated and personnel who decline to disclose their vaccination status.

Under the June Order, effective immediately, Covered Entities that have completed at least two rounds of the vaccination status ascertainment process prescribed by the May Order are no longer required to request and record such information from personnel. Covered Entities that have not completed at least two rounds of vaccination status ascertainment, on the other hand, must continue to do so until they have completed two rounds of the ascertainment process. The May Order’s enforcement provisions, which include fines of up to $5,000 per violation per day for failure to properly request and record personnel vaccination status information, remain in effect.

Recommendation to Continue Vaccination Benchmarking

While the June Order phases out the vaccination benchmarking mandate, the Health Officer nonetheless urges Covered Entities to follow recommendations set forth in the June Order — including the recommendation that Covered Entities regularly request updated vaccination status information from personnel who are not already fully vaccinated.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.