To mitigate against a 47% increase in the seven-day average COVID-19 case rate and a 14% increase in hospitalizations, Governor Gavin Newsom announced the return of an indoor mask mandate — which will apply irrespective of vaccine status in many locations — starting December 15 and lasting until January 15. California is implementing this change because of the rapid spread of the Omicron variant and increased travel and mixing of households during the holiday season.
So, just as things were starting to relax a bit in some parts of the state, the California Department of Public Health mask mandate once again tightens up face covering requirements for California employers. What do California employers need to know now?
Who & Where: A number of California counties — including Los Angeles, Ventura, Sacramento, and most of the San Francisco Bay Area – already have their own indoor mask mandates that were implemented in the summer and have no end dates. The new mandate does not supersede these existing orders, and thus will primarily change things for employers in San Diego County, Orange County, the Inland Empire, swaths of the Central Valley, and rural Northern California.
What & When: California employers must comply with the new order by requiring both employees and customers to wear masks in all indoor public settings, irrespective of vaccine status, from December 15, 2021 to January 15, 2021.
In addition to masking, the state will now require those without proof of vaccination attending events with more than 1,000 people to show proof of a negative COVID-19 test within one day. The previous guidelines required a test within 72 hours. The state will also recommend those who travel in or out of California get tested for COVID-19 within three to five days.
What else are employers asking?
Some employers have questioned whether the mandate covers office settings where workers are 100% vaccinated. The answer is: “it depends.”
On Tuesday afternoon, the CDPH clarified that the new indoor mask mandate only applies to local jurisdictions that do not already have an existing mask requirement in place as of December 13, 2021. Thus, for example, because San Francisco already has an indoor mask mandate that allows stable cohorts of 100% vaccinated people to forego masks in indoor settings like workspaces and gyms, the CDPH clarification enables employers in San Francisco to continue allowing their fully vaccinated stable cohorts to go without masks if they otherwise meet the requirements of the San Francisco health order. (In the Bay Area, Alameda, Contra Costa, Marin and Sonoma counties have adopted similar exemptions and thus the same analysis applies.) Note that some counties and cities with mask mandates do not permit vaccinated persons to forgo masks indoors, and in such locations, the local order applies, but vaccinated employees must still wear masks.
For all locations that did not already have a mask mandate in place, it seems clear that the CDPH mask mandate will apply to employees. While the new CDPH order does not specifically address places of employment, the new CDPH mask mandate directs employers to comply with the Cal/OSHA ETS, Section 6 of the ETS says that:
“Employers shall provide face coverings and ensure they are worn by employees when required by orders from the CDPH.”
Other ETS-related guidance also confirms that employers must comply with CDPH face covering requirements.
Accordingly, employers must follow the new CDPH mask mandate for all employees, even those who are fully vaccinated, except in those counties or cities that have existing mask mandates that (1) were in effect prior to December 13, 2021 and (2) apply regardless of individuals’ vaccination status. In those localities, employers may follow the local mask mandate – including its exemptions, such as allowing fully vaccinated employees to go without masks in 100% vaccinated workplaces.
Another question is are there exceptions to the mask mandate itself? As a reminder, under the ETS, masks need not be worn in the workplace:
- When an employee is alone in a room or vehicle.
- While eating or drinking at the workplace, provided employees are at least six feet apart and outside air supply to the area, if indoors, has been maximized to the extent feasible.
- Employees wearing respirators required by the employer and used in compliance with section 5144.
- Employees who cannot wear face coverings due to a medical or mental health condition or disability, or who are hearing-impaired or communicating with a hearing-impaired person.
- Specific tasks which cannot feasibly be performed with a face covering. This exception is limited to the time period in which such tasks are actually being performed.
Further, under the CDPH order, the following individuals are exempt from wearing masks at all times:
- Persons younger than two years old. Very young children must not wear a mask because of the risk of suffocation.
- Persons with a medical condition, mental health condition, or disability that prevents wearing a mask. This includes persons with a medical condition for whom wearing a mask could obstruct breathing or who are unconscious, incapacitated, or otherwise unable to remove a mask without assistance.
- Persons who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication.
- Persons for whom wearing a mask would create a risk to the person related to their work, as determined by local, state, or federal regulators or workplace safety guidelines.
- Update mask policies if necessary.
- Post clearly visible signage regarding masking rules.