Santa Clara, Contra Costa and San Francisco county health officials Thursday urged employers to require their workers to get vaccinated as soon as possible as the Bay Area sees a surge in COVID-19, chiefly among those who’ve not been inoculated.
And Santa Clara County said late Thursday afternoon it intends to lead by example by requiring all 22,000 of its employees to become vaccinated.
The county health officials said California’s relaxing of pandemic restrictions since mid-June, and the rapid spread of the more contagious delta variant, have led to significantly higher case rates and a higher risk of transmission at businesses and workplaces.
“Workers who are unvaccinated against COVID-19 pose a substantial health and financial risk to the workplace,” said Dr. Chris Farnitano, Contra Costa County’s health officer. “Most importantly, workplace exposures have led to serious illnesses and deaths.”
Thursday’s announcement was not a mandate — so employers that don’t follow it won’t face penalties, though the health officials said they were hopeful a recommendation would be enough.
“We have seen recommendations be effective in the past,” said Dr. George Han, Santa Clara County’s deputy health officer, adding that county officials were spurred by hearing from some employers that a recommendation would be helpful. “Could there be further actions in the future? Of course.”
Santa Clara County in May required businesses to determine the vaccine status of their workers ahead of the state’s reopening in June, when the state’s workplace regulator said vaccinated workers don’t need to wear masks on the job, though Bay Area county health officers now urge everyone to wear masks indoors.
Derrick Seaver, CEO of the business group The Silicon Valley Organization, said his members are overall supportive of recommendations from health officers. But unlike masking requirements, vaccination rules present “thorny legal issues” that many businesses don’t have the legal resources to navigate on their own.
“The one request that I think a number of our members would have … is just that the health director provide very clear and very consistent guidance on how they can meet that recommendation in a way that keeps their legal liability low,” Seaver said.
The health officials did not explain how an employee-vaccination requirement should work or whether employees who refused to get vaccinated should lose their jobs, although they said that would be a possibility.
“Employers are allowed to set workplace safety requirements and to enforce workplace safety requirements, and if an employee is creating an unsafe work environment, there are consequences for that,” Farnitano said.
The health officials did say that in addition to requiring vaccinations, employers also should require medical-grade face masks and frequent COVID-19 testing for employees who aren’t yet fully vaccinated. Asked whether a fully vaccinated workforce would still have to wear face masks, they said it would be reasonable to allow them to go without, though if they deal with the public, they should continue wearing them.
Enrique Fernandez, business manager at Unite Here! Silicon Valley Local 19, which represents some 8,000 South Bay workers in hotels, cafeterias, convention centers, restaurants, casinos, airports and airlines, said the union supports vaccination efforts. But details of an employee vaccine mandate would have to be negotiated, and he’d have a problem with a policy in which an unvaccinated worker could be fired.
“We’re not going to support any termination,” Fernandez said. “However, we need to protect everybody. The advantage we have as a union is they have to negotiate with us.”
The recommendation comes as new cases have been rising at such a clip that if California still had the color-coded reopening blueprint it retired June 15, a dozen California counties would be in the most restrictive purple tier for widespread infections, including Contra Costa, Alameda and Solano. San Francisco and Santa Clara would be in the second-most restrictive red tier.
Though new infections and hospitalizations have mostly been among the unvaccinated, health experts and public officials have urged tougher action to spur vaccinations.
Kim McCarl, a Contra Costa County communications officer, said that although only three of the nine Bay Area counties’ health officials are making the recommendation now, “we anticipate we’ll see more coming in the coming days.”
The state has required staff at nursing homes to be vaccinated, and Contra Costa County and San Francisco have extended that to other high-risk settings, including hospitals and correctional facilities.
San Francisco last month announced it will require all 37,000 city employees to be vaccinated, but only when the vaccines — now under emergency use authorization in the U.S. — are fully approved. On Thursday, Santa Clara County Executive Jeff Smith said his county wouldn’t wait for full approval before making the requirement, which he acknowledged will have to be negotiated with employee unions. He said about 80% of county workers are vaccinated. Contra Costa County officials haven’t indicated plans for a countywide employee vaccine requirement.
The health officers said current state and federal employment law supports employers requiring documentation of vaccination status, requiring vaccination as a condition of employment, and requiring additional safety precautions, including masking and frequent testing for employees who are unvaccinated.
Sandra L. Rappaport, an employment attorney with the Hanson Bridgett law firm in San Francisco, said employees who don’t want to be vaccinated may have little recourse if their employer requires it.
“A private employer can impose any employment condition it wants to so long as the condition is not unlawful,” Rappaport said. “And there is no law at the moment that prohibits an employer from requiring an employee to obtain a vaccine as a condition of employment.”
