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 Employers in California's Santa Clara County, including Christopher
Ranch, are required as of June 1 to ascertain if their workers have
been vaccinated and check in every 14 days on those who say they
have not or who decline to answer.
The timing of the order, in the middle of the busy harvest season,
couldn't be worse.
Ken Christopher, the farm's executive vice president, said the
company has to develop a system to check who has been vaccinated
while observing privacy laws and monitoring workers' adherence to
safety protocols and testing.
"If the government wants to mandate (a vaccine), that’s one thing,"
Christopher said. "But then requiring us to police it, that feels
very unconventional."
Workers in the Silicon Valley county who aren't vaccinated or refuse
to reveal their status to their employer must remain masked and
should follow other protocols, such as limiting long-distance work
travel and submitting to regular COVID-19 testing.
Employment lawyers said companies are watching closely how rules
play out nationally, as they look to bring workers back safely and
to dispense with mask protocols. But doing so may require
identifying those who got a COVID-19 shot with badges or bracelets,
raising discrimination issues and complicating hiring in a
tightening labor market as the pandemic eases.
Several states, including California, Michigan and Oregon, have
their own rules or guidance on documenting vaccination status for
workers but they are generally less strict than in Santa Clara
County.
In Montana, however, a recently enacted law discourages employers
from asking about vaccination status because it could lead to
discrimination claims, according to employment lawyers.
"It's a hairball," said Eric Hobbs, an employment attorney with
Ogletree Deakins in Milwaukee. "It's all very confusing."
Christopher said he is considering a mask-free shift for vaccinated
workers and another shift for workers who haven't gotten their shot
to avoid discrimination and tension.
But asking farm laborers about their vaccination status and entering
their details in a database could hurt recruitment efforts, he said.
"It’s the additional information being offered to the government,"
said Christopher. "The more layers added on top, the more
uncomfortable they are in seeking jobs here."
The U.S. workplace safety regulator, the Occupational Safety and
Health Administration, or OSHA, has not provided clear guidance on
the issue.
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"We continue to let the employer make the
determination how to properly do this for their
workplace," OSHA's acting director, Jim
Frederick, told Reuters.
'SCARLET LETTER'
The U.S. Centers for Disease Control and
Prevention, which said last month that
inoculated people can go without face coverings
indoors in most places, has not addressed the
thorny issue of how to establish whether someone
has been vaccinated.
"What
companies are debating right now, and we are too, is: is it
necessary to specify on someone’s badge or wear something around
their neck that, yes, they are vaccinated and therefore if they
don’t have a mask on there’s nothing to worry about?" said Peter
Hunt, vice president of brand protection and security at Flex Ltd, a
product design and manufacturing company.
That troubles Alix Mayer, the president of the California chapter of
Children's Health Defense, which is skeptical of the vaccination
effort.
Requiring employers to ask about inoculation status is in essence a
vaccine mandate, she said, because the unvaccinated will have to
wear masks which amount to a "scarlet letter."
In Santa Clara County, ServiceNow Inc, a cloud computing platform
developer, told Reuters it is marketing an app for workers to
provide employers their vaccination status, and, if required, to
document it.
In communications with its own employees, ServiceNow emphasizes it
does not require vaccines to return to work and leaves it to
employees to decide whether to reveal their vaccination status.
"We encourage you to share if you are comfortable doing so," say the
instructions.
The company does require masks to be worn in its offices, however.
Helen Cleary, director of the Phylmar Regulatory Roundtable, an
environmental health and safety forum for large employers, said
companies should be allowed to trust employees to follow mask rules
rather than prove or disclose if they've been vaccinated.
"We trust employees to do a lot of things. We trust them not to
steal from the till," said Cleary. "We support the honor system, and
think that could alleviate a lot of these issues."
(Reporting by Tom Hals in Wilmington, Delaware, Stephen Nellis and
Jane Lanhee Lee in San Francisco and Elizabeth Dilts in New York;
Editing by Sonya Hepinstall)
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