California “reopened” on June 15, 2021, doing away with its color-coded tier system, state-mandated business capacity restrictions, and state-mandated physical distancing requirements. The reopening also came with relaxed mask-wearing guidelines for fully vaccinated individuals. Subject to a few exceptions, such as when riding on public transportation, California now permits fully vaccinated individuals to go without a face covering in most public settings.
Despite the clarity of these relaxed restrictions for the general public, private employers have been faced with changing guidance, particularly relating to face coverings in the workplace. In the weeks leading up to reopening, it appeared that masks would remain a fixture in the workplace. In early June—around the same time that Governor Newsom announced his reopening plans—Cal/OSHA, the state agency responsible for workplace safety, announced its own, stricter set of rules related to COVID-19 safety precautions. Under those rules, the presence of an unvaccinated employee in the workplace would require all employees, including those who are fully vaccinated, to wear a face covering in most indoor settings.
However, Cal/OSHA backpedaled on its face covering requirement only four days later, adopting a new set of rules that aligned with the state’s looser, post-reopening face covering guidelines. Despite these relaxed requirements, Cal/OSHA nonetheless imposed certain extra requirements of which all California employers should be aware. And as Los Angeles County’s July 15, 2021 announcement illustrates, Cal/OSHA’s rules are subject to override by local mandates reinstituting stricter face covering requirements.
What do Cal/OSHA’s latest rules mean for employers?
In a marked departure from Cal/OSHA’s original rules, the new rules dictate that fully-vaccinated employees are not required to wear face coverings indoors, regardless of others’ vaccination status. And when it comes to outdoor settings, fully vaccinated and unvaccinated employees can go without face coverings.
Nevertheless, the new rules have not completely done away with face coverings in the workplace. In areas where Cal/OSHA’s rules control, employees who are not fully vaccinated must continue to wear face coverings indoors. And employers have an additional obligation to provide unvaccinated employees with face coverings. Surgical masks, medical procedure masks, voluntarily-worn respirators, and masks with tightly-woven fabric or non-woven material with at least two layers meet Cal/OSHA’s definition of a “face covering.” On the other hand, face shields alone, scarves, ski masks, balaclavas, bandanas, turtlenecks, collars, or single-layer fabric masks do not. So long as the face covering meets Cal/OSHA’s definition, nothing in the rules prohibits an employee from choosing to wear their own face covering, rather than the one provided by their employer. Finally, employers must ensure their unvaccinated employees wear these face coverings over their nose and mouth.
Cal/OSHA’s latest rules also impose obligations on employers with regard to fully vaccinated employees. Employers must provide Cal/OSHA-compliant face coverings to fully vaccinated employees on request. In addition, the new rules require employers to document the vaccination status of any employee not wearing a face covering indoors. Although this may include retaining copies of employee vaccination cards, employers may also meet this requirement by maintaining a record of the employees who presented proof of vaccination or a record of employees who self-attest to full vaccination.
Yet local mandates may trump Cal/OSHA’s latest rules on face coverings in the workplace and other indoor settings. A month after California and Cal/OSHA relaxed face covering guidelines, Los Angeles County reinstated a mandate, effective July 17, 2021, requiring individuals to wear face coverings indoors in public settings regardless of their vaccination status. Though they have yet to announce similar mandates, health officials for the San Francisco Bay Area, Sacramento County, and Yolo County advise all individuals to wear face coverings in indoor public settings. Given the statewide rise in COVID-19 cases, those counties may soon follow suit.
Though the rules addressed above remain in effect as of this article’s publication date, the workplace safety rules for California employers are ever-changing. California employers should monitor federal, state, and local public health guidance, and Cal/OSHA’s Guidance and Resources to determine their obligations with regard to COVID-19 prevention in the workplace.