Q&A: What San Jose businesses need to know about masks, COVID vaccines and social distancing

Differences between local and national COVID regulations are causing confusion and placing the burden of enforcement on businesses.

The Centers for Disease Control and Prevention recently announced that fully vaccinated individuals no longer need to wear masks or social distance “in any setting.” But in Santa Clara County, everyone is still required to wear masks regardless of vaccination status. That won’t change until California fully reopens on June 15.

The county recently moved to the least-restrictive yellow tier, which allowed businesses to remove capacity limits and operate indoors with minimal restrictions. But employers also must now keep track which of their workers are vaccinated.

The conflicting federal and local health orders along with a barrage of new information about vaccines and masks has left many South Bay business owners confused and frustrated. We sat down with a leading employment attorney, Sarju Naran of the prominent law firm Hoge Fenton, to answer some of the most frequently asked questions on navigating COVID guidelines.

As an employer, can I ask my employees to show proof of vaccination?

Yes. Despite common concerns I’ve received about privacy, it is not a violation of the Health Insurance Portability and Accountability Act, the Americans with Disabilities Act (ADA), or the California Fair Employment and Housing Act to require proof of vaccination.

Employers in many fields regularly require proof of other vaccinations (e.g., flu, TB); this is no different but it applies to a broader audience due to the issue arising in the context of a public health emergency. In Santa Clara County, in particular, employers are under a local health order mandate to determine which of their personnel are vaccinated by June 1, and every 14 days thereafter.

Can I ask my customers to show proof of vaccination?

Yes, if you are a private business (not a governmental entity).

Can I continue asking people to wear masks inside my business after the state fully reopens on June 15?

Yes. Similar to signs many of us have seen in private businesses that say, “No Shoes, No Shirt, No Service,” businesses have the right to regulate attire and conduct in their private space. With that said, customers or personnel with a need for medical accommodation need to be reasonably accommodated under the ADA, and religious exceptions may also apply. One form of accommodation may be to create an exception from the mask requirement, but there may also be other options.

Will the state fine me for allowing customers to remove masks before June 15?

The imposition of fines by both the state as well as the county is still a possibility for businesses that do not comply with state or local regulations.

What are my options for customers who refuse to wear a mask after June 15?

Again, unless the customer claims a need for medical or religious accommodation, you can choose to exclude customers from your business who refuse to comply with the rules of your establishment.

What should I tell customers who ask if my employees are vaccinated?

Employers are not at liberty to disclose medical information pertaining to employees, including their vaccination status. If employers want to provide some assurance to their customers, they can instead respond that they are operating in compliance with all federal, state and local orders (which would imply, if/when the rules change, that employees who are not wearing masks are fully vaccinated).

Employees are also free to voluntarily disclose their own information, but it should not be at the suggestion or encouragement of the employer.

Can I require an employee to get the shot if they refuse to get one voluntarily?

Both the Equal Employment Opportunity Commission and the California Department of Fair Employment and Housing have issued express guidance allowing employers to mandate FDA-approved vaccines as a condition of employment, subject to a couple exceptions.

Specifically, if an employee has a medical condition or holds a sincerely held religious belief that prevents him/her/them from being vaccinated, the employer needs to reasonably accommodate the employee unless doing so would impose an undue hardship on the business. Undue hardship is difficult to establish, so businesses should consult with legal counsel before invoking that exception to the requirement to accommodate.

Do you have any advice for enforcing the county’s mask mandate amid the conflicting order from the CDC to remove masks for fully vaccinated people?

Businesses and individuals should keep in mind that they are subject to federal, state, county and city rules—all of the above. Many of us are used to California applying more stringent requirements than the federal government. Minimum wage is an example of this. Businesses have to comply with both federal minimum wage and the higher California minimum wage; and in some instances (such as in San Jose), an even higher municipal minimum wage.

The mask mandate works the same way. While the CDC provides guidance at a federal level, if a county ordinance is stricter and continues to require masks for people who are fully vaccinated, that is the rule we have to follow in the county.

What changes are happening with the state’s COVID restrictions on June 15?

The economy is expected to fully reopen on June 15, meaning that we will no longer be subject to the tier system of the Blueprint for a Safer Economy. While specifics have not yet been nailed down, it is expected that businesses can reopen with “common-sense risk reduction measures.”

We are currently awaiting guidance from Cal-OSHA as to whether the emergency temporary standards that were issued in December 2020 will be lifted or modified at that point. Cal-OSHA is expected to post draft revisions to its guidelines on May 28, which will be subject to a vote by the Cal-OSHA Standards Board on June 3, and if approved, the new guidelines will go into effect on June 15. In other words, more concrete information should be coming soon.

Do we still have to socially distance after June 15?