CA Governor Expected to Sign Order Eliminating Workplace Mask Mandate for Vaccinated Personnel

Fenwick & West LLP

Fenwick & West LLP

California’s Occupational Safety and Health Standards Board (Cal-OSHA) has released proposed revisions to its COVID-19 Emergency Temporary Standards (ETS). The revisions, key aspects of which are summarized in this alert, largely align the ETS with the latest guidance from the federal Centers for Disease Control (CDC) and California Department of Public Health (CDPH) on physical distancing and face coverings for vaccinated and unvaccinated workers.

Cal-OSHA will vote on the revised ETS on June 17, 2021, and, if approved, the revised ETS would normally take effect on June 28, 2021, leaving a nearly two-week period in which California employees would operate under rules different from the state’s guidelines for the public at large. However, if Cal-OSHA votes to approve the revised ETS, Governor Gavin Newsom is expected to sign a same-day executive order authorizing the revised ETS to go into effect immediately, thus exempting, as of June 17, fully vaccinated employees from face covering and physical distancing requirements in the workplace.

Consistent with the latest guidance from the CDPH and the CDC, under the revised ETS, employees who are not fully vaccinated must wear face coverings while working indoors (with limited exceptions, including when alone in a room or when eating or drinking while maintaining physical distancing), and it is recommended that face coverings are worn while working outdoors when six feet of distance cannot be maintained.

The revised ETS require employers to “document” full vaccination status, but do not specify the precise manner of documentation. Practically, employers should, at minimum, require employees to attest that they are fully vaccinated and record the attestation. More precisely, employers could require a photocopy of vaccination cards. Regardless, such documentation should be kept confidential.

The revised ETS maintain, and in some cases expand upon, requirements and protocols for the posting of COVID-19 policies, employee training and the handling of COVID-19 exposures in the workplace.

Lastly, even with Governor Newsom’s anticipated executive order, counties may impose more restrictive orders. However, as of this publication, we are not aware of any county in the state that intends to do so.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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