Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
It was just last month when the state of California announced the state’s reopening and what many hoped to be the end of pandemic life and various COVID-19-related restrictions. Most significant for many, face masks—which had become the symbol of COVID-19—were merely optional if one was fully vaccinated. At least, until last week.
On July 16, 2021, Los Angeles County issued a new Health Order effective July 17, 2021 (“Order”) that requires all persons, regardless of vaccination status, to wear face masks indoors in all public and business settings. LA County issued the Order citing a rapid increase from low to substantial transmission of COVID-19 in the community within one month.
Los Angeles County Health Order Requirements
Specifically, the Order requires all persons, regardless of COVID-19 vaccination status, to wear face masks in all indoor public settings, venues, gatherings, and businesses (e.g., offices, retail, restaurants, theaters, family entertainment centers, meetings, state and local government offices serving the public, among others). Attendees at Mega Events (e.g., concerts, conferences, events where more than 5,000 people attend), must wear face coverings for all indoor events, and outdoor events where 50% of the structure has adjacent impermeable walls, such as concourses and concession stands. In addition, the Order recommends the use of either double masking (i.e., wearing two face masks) or N95 respirators in all public and private indoor settings, as well as crowded outdoor settings, where there is close contact with unvaccinated persons or those who are not yet fully vaccinated.
The Order will remain in effect until further notice by the Health Officer.
Other Counties and Cities are Joining Efforts to Curb the Increase in Cases
Similarly, several counties in Northern California, including Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara, Sonoma, and the City of Berkeley issued statements recommending that everyone, regardless of vaccination status, wear masks indoors in public places, which serves as an extra precautionary measure for those who are fully vaccinated, and ensures all unvaccinated individuals are masked. To follow the county guidance, several cities have issued mandates on masking including San Ramon and Long Beach.
What this Means for Employers
The Cal-OSHA Emergency Temporary Standards (ETS) includes procedures for employers to follow CDC guidance and lower certain safety restrictions for fully vaccinated employees, but allows for enforcement of local jurisdictions’ more protective health mandates. Therefore, all employers in any of the above-referenced counties should require all employees, regardless of their vaccination status, to wear face masks while working indoors, except in the following situations:
- In workplaces where employees may be exempt from wearing a face mask when performing specific tasks that cannot feasibly be performed while wearing a mask. This exception is limited to the period in which the task is actually being performed. Such employees must be tested for COVID-19 twice a week unless the employer is provided with the employee’s proof of COVID-19 vaccination or proof of recovery from a laboratory-confirmed COVID-19 test within the past 90 days.
- Anyone instructed not to wear a face mask by their health care provider. In these cases, employers should allow employees to seek accommodation.
Employers should review their current COVID-19 Prevention Plan or health and safety policies and make amendments or changes to reflect the new LA County Health Order. All other aspects of the Cal-OSHA ETS remain unaffected by the LA County Health Order and employers must continue to follow the mandates set forth in the Cal-OSHA ETS.
Employers should also continue to:
- provide face masks for employees;
- evaluate the need for personal protective equipment (PPE), including voluntary use of respirators (e.g., N95s) pursuant to Cal-OSHA ETS §3205(c)(7)(D);
- monitor cases where employees cannot wear face masks because doing so would adversely affect their health;
- conduct hazard assessments regarding whether face masks will interfere with or inhibit job functions;
- ensure that physical distancing is an option when employees are not wearing masks (e.g., eating or drinking);
- train employees on how to use, safely don and doff, and clean reusable face coverings; and
- post signs at all entrances letting patrons know the business’ face mask requirements.
Given the continuing increase in COVID-19 transmissions in California and elsewhere in the country, it is possible that other jurisdictions may follow and return to requiring indoor face masks. Therefore, all employers should continue to monitor for updates to local county or city-level health orders.