California Employers Can Make Reasoned Choices as State Reduces Formal Workplace Masking Requirements

Effective March 1, 2022, there is no longer a hard requirement under the Cal/OSHA statewide Emergency Temporary Standard (CA ETS) or any other statewide requirement for employers to require unvaccinated persons (or fully vaccinated persons) to mask indoors at work. Instead, the masking requirement applies only in specified settings such as health care, K-12 schools and childcare facilities, long-term care settings, and others.  There also is presently no such hard requirement applicable in most (but not all) local jurisdictions after March 1, as many local jurisdictions responded by aligning with the new statewide standards.  Does the elimination of formal government requirements require employers to immediately alter their own masking policies?  No; it simply presents a new opportunity for reasonable decisions to be made.  There remains a need for employers to continue conducting a wholistic approach to COVID-19 prevention in the workplace, for which maintaining masking in certain settings may be a part, when making their own choices.

What Changed?

On February 28, Governor Newsom issued a new executive order that suspended Section 3205(c)(6)(A) of the ETS, which on its face provides: “For all employees who are not fully vaccinated, employers shall provide face coverings and ensure they are worn when indoors or in vehicles.” This action suspended the ETS requirement. However, Cal/OSHA has also taken the position that health orders from the California Department of Public Health (CDPH) may apply heightened masking requirements via incorporation through the ETS. But on February 28, CDPH also issued new guidance that expressly reduces the previous requirement for unvaccinated persons to mask indoors to a “strong recommendation,” rather than a requirement.  This eliminated a hard requirement flowing to the ETS as a result of current CDPH guidance.  In addition, on March 1, Cal/OSHA published updated FAQs, which included replacing its previous statement about masks being required for unvaccinated persons with a statement that employers must allow employees to wear a face covering even when it is not required under the ETS.  This aligned with the new executive order and CDPH guidance.  Nearly all (but not quite all, including most notably LA County) local jurisdictions in California have aligned their guidance (if any) specifically to align with the new statewide measures.

What Now?

It is important for employers to recognize that the suspension of the one specific provision in the CA ETS that provided the general masking requirement does not eliminate the requirements under the ETS for masking that may arise from special circumstances, such as those involving close contacts, conditions for return to work following such an exposure, during outbreaks, and others.  Only the general requirement has been suspended.

It is also important for employers to recognize that Cal/OSHA will still scrutinize the totality of an employer’s COVID-19 prevention approach, should it become involved in a situation arising from a complaint and/or an outbreak.  For example, if the work setting involves a relatively high-risk setting with a high degree of close personal contact by employees throughout the work day, if the ventilation opportunities for the location are limited, if the location experiences a number of COVID cases and/or an outbreak, and if other such factors are present, then these or other kinds of factors should be considered when an employer is making a decision whether to lift or to re-apply a masking requirement in a particular location or work space.  The ETS continues to require that employers apply a generalized workplace risk assessment. 

Several counties have updated their masking guidance to match the new guidance from the state including San Francisco County, Alameda County, City of Berkeley, Contra Costa County, Humboldt County, Inyo County, Marin County, Mono County, Monterey County, Napa County, Nevada County, Plumas County, Riverside County, San Bernardino County, San Diego County, San Joaquin County, Sierra County, Solano County, Sutter County, Yolo County.  Employers should familiarize themselves with more stringent county and city requirements that may require face coverings in certain situations (e.g., on public transportation, when using a rideshare or taxi, in homeless shelters, when receiving health care). 

Adjustment to Scheduling for Anticipated Third Re-Adoption of the CA ETS

Another feature of the new executive order is that it extends by 21 days the effective period of the second CA ETS re-adoption, which was previously set to expire on April 14, 2022.  This adjustment suggests that the current CA ETS requirements might remain in place until May 5, 2022.  As a practical matter, this may permit Cal/OSHA to delay publication of draft text for the third re-adoption that the governor authorized in a previous order. Before the new extension, it was anticipated that the Cal/OSHA Standards Board would vote on a new draft text at their meeting in mid-March, with draft text to be published before that meeting.  The extension may permit publication of the draft text to be delayed until shortly before the Board’s April 2022 meeting, at which they might then vote on the third re-adoption.

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.