February 10, 2022 • Christina Tantoy
Category: Legal Updates
California recently announced that it will lift its mask mandate for vaccinated residents in indoor public places starting on February 15, 2022. This means that California no longer requires employers to mandate face coverings for vaccinated employees while indoors. And all employees, regardless of their vaccination status, are no longer required to wear a face covering while outdoors unless there is an outbreak in the workplace.
Employers, however, must still follow California Division of Occupational Safety and Health’s (“Cal/OSHA”) COVID-19 Emergency Temporary Standards (ETS), which requires the following for face coverings:
• Unvaccinated employees must continue to wear a face covering while indoors.
• Employers must also provide and require all employees, regardless of vaccination status, to wear a face covering in these scenarios:
When required by the California Department of Public Health;
When an employee had COVID-19 or had close contact with a COVID-19 case and returns to work, as explained in the section of this FAQ on CDPH’s Isolation and Quarantine Guidance; or
When riding in employer-provided motor vehicle transportation.
• Upon request, employers must provide unvaccinated employees who are working indoors or in vehicles with more than one person, with a respirator mask that is approved by the National Institute for Occupational Safety and Health (NIOSH), such as an N95 mask.
• Upon request, employers must provide face coverings to all employees, regardless of their vaccination status. Employers must allow employees to wear face coverings if they voluntarily choose to do so, unless it would create a safety hazard, such as interfering with the safe operation of equipment.
• Employers must provide exemptions for employees who cannot wear a mask a medical condition, mental health condition, or disability. These employees should be allowed to wear an effective non-restrictive alternative (e.g., a face shield with a drape on the bottom) if their condition or disability allows it. If their condition or disability does not allow a non-restrictive alternative, the employee must stay six feet apart from all other persons and either show proof of full vaccination or test weekly for COVID-19 during paid time and at no cost to the employee.
Employers may also continue to require all employees, regardless of vaccination status, to wear masks despite California lifting its statewide requirement. Cal/OSHA’s guidance specifies that “employers can have policies that are stricter than those required by the ETS.” Thus, employers who wish to maintain a mask mandate for all employees after February 15th may continue to do so, subject to the exemptions listed above.
Employees should check their local county guidelines as only certain counties, such as San Francisco, Riverside, and San Diego Counties, have announced that they will follow California and lift their mask mandates. Before making any changes, employers should check with their local county’s Department of Public Health to determine what whether local mask mandates are still in effect.
Please contact a Stokes Wagner attorney if you have any questions.
For a printable PDF of this article, Click here.
THIS DOCUMENT PROVIDES A GENERAL SUMMARY AND IS FOR INFORMATIONAL/EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE COMPREHENSIVE, NOR DOES IT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT WITH COUNSEL BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION.
1 “Face covering” is defined as a surgical mask, medical procedure mask, respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least two layers (i.e., fabrics that do not let light pass through when held up to a light source) that completely covers the nose and mouth and is secured to the head with ties, ear loops, or elastic bands that go behind the head. If gaiters are worn, they shall have two layers of fabric or be folded to make two layers. A face covering is a solid piece of material without slits, visible holes, or punctures, and must fit snugly over the nose, mouth, and chin with no large gaps on the outside of the face. A face covering does not include a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric.