California Workers Can’t Ditch Masks Just Yet

Proskauer - California Employment Law

Proskauer - California Employment Law

In a closely-watched vote, yesterday (June 3, 2021), California’s Occupational Safety & Health Standards Board approved controversial amendments to the Emergency Temporary Standards (“ETS”) related to COVID-19.  If approved by the Office of Administrative Law within the 10 day review period, the new ETS (available here) will require (among many other things) most California workers (whether or not they are vaccinated) to continue to wear face masks “when indoors, when outdoors and less than six feet away from another person, and where required by orders from the … [California Department of Public Health] or local health department[s].”  Employees will not be required to wear a mask when they are alone in a room or while eating and drinking, if socially distanced and outside or inside with maximized outside air-supply.  Fully-vaccinated employees without COVID-19 symptoms will be able to forgo masks when they are outdoors or when everyone in a room is fully-vaccinated and nobody has any COVID-19 symptoms.  Likewise, masks will not be required where employees must undertake “[s]pecific tasks which cannot feasibly be performed with a face covering,” although this exception is “limited to the time period in which such tasks are actually being performed.”

A subcommittee has been established to consider additional revisions to the new ETS language in the coming weeks.  However, as of June 3rd, less than ½ of the total California population is “fully-vaccinated.”  Therefore, for the time being, this means that even if California’s Department of Public Health revises its face masking requirements to more closely-align with those promulgated by the CDC in May, many California employees still will need to wear masks at work—at least when they are in the company of other employees.

The updated ETS language faced spirited opposition from employers.  In addition to the masking requirements, the California Chamber of Commerce identified a number of other seriously problematic provisions, including language requiring employers to stockpile and provide N-95 masks to unvaccinated employees by July 31, 2021.

We’ll bring you more information when we know it.

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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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Proskauer - California Employment Law

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