With COVID-19 cases back on the rise and mitigation strategies, like face covering mandates, back, it feels like we have jumped into a time machine to go back to the past. The issue now is that California is becoming a patchwork of different rules that is largely dependent upon where a business’ work is performed, which is causing quite a bit of confusion. To help employers, here’s a roadmap to understand the varying rules and how to continue to track them into the future.
For many employers, the previously reported California Division of Occupational Safety and Health (Cal/OSHA) COVID-19 Emergency Temporary Standards revisions that took effect on June 17, 2021, represented what was thought to be a set standard to follow for the foreseeable future. In those revisions, employers can require face coverings for all employees indoors, or if they wish to relax the face covering rule, most employers may allow documented, fully vaccinated employees to work without face coverings at all times indoors. Employees who are still not fully vaccinated or who decline to provide the required proof must continue to wear face coverings in most indoor settings following the California Department of Public Health face covering guidance.
While the emergency temporary standards did provide for flexibility while increasing some administrative burdens on employers to document vaccination status to obtain that flexibility, they also provided a set standard for all California employers. However, a provision in the standards since they were first implemented on November 30, 2020, requires that all employers follow local health orders should they require more stringent rules than the emergency temporary standards. This is where the last couple of weeks have started to create a lot of confusion starting with Los Angeles County’s revised public health order.
As previously reported, Los Angeles County revised its public health order effective on July 17, 2021, that now requires all persons regardless of vaccination status to wear face coverings in all indoor public settings, venues, gatherings and businesses. This means that employers with employees performing work indoors in Los Angeles County must require those employees to wear face coverings.
As it turns out, Los Angeles County was just the first domino to fall as the following counties and city have now all instituted similar indoor masking mandates:
- Sacramento (Effective 7/30/21)
- Yolo (Eff. 7/30/21)
- Alameda (Eff. 8/3/21)
- Contra Costa (Eff. 8/3/21)
- Marin (Eff. 8/3/21)
- San Francisco (Eff. 8/3/21)
- San Mateo (Eff. 8/3/21)
- Santa Clara (Eff. 8/3/21)
- Sonoma (Eff. 8/3/21)
- City of Berkeley (Eff. 8/3/21)
Additional counties may follow suit in the future, which highlights the importance of staying up-to-date with your local public health orders. For employers who not only have employees in those locales listed above but also in other counties without indoor mask mandates, maintaining compliant health and safety rules can be difficult.
As stated above, employers may maintain universal health and safety rules that are stricter than the Cal/OSHA emergency temporary standards or local public health orders, which means employers may require masks for all employees regardless of vaccination status and regardless of location in which they perform work. Employers may also continue to follow the more lenient standard rules for fully vaccinated employees in those locations without stricter public health orders.
Although we may be exhausted following the whiplash of continuing and evolving government health and safety guidance and mandates, compliance in this area remains a high priority. Local health departments may issue fines for violating their public health orders; Cal/OSHA may issue citations and, in extreme cases, shut down businesses for violating workplace safety rules; and litigation concerns are heightened for employers who don’t provide a safe and healthy workplace for its employees.
As these rules continue to rapidly evolve, issues from workplace testing, excluding employees from the worksite and mandatory vaccinations also continue to undergo change. Employers should continue to remain up-to-date on relevant government agency guidance as well as remaining in close contact with legal counsel when considering changing any health and safety protocols.
Matthew J. Roberts, Employment Law Counsel/Subject Matter Expert