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.
On December 13, 2021, the California Department of Public Heath (CDPH) issued new guidance requiring universal statewide masking indoors, irrespective of vaccination status, between December 15, 2021 and January 15, 2022 (New Guidance). The New Guidance supersedes all prior face covering guidance, including guidance issued by the CDPH on July 28, 2021.
Under the New Guidance, face coverings are required for all individuals in “indoor public settings,” regardless of vaccination status. While the term “indoor public setting” is not explicitly defined in the New Guidance, it has been defined throughout the COVID-19 pandemic to include indoor locations where individuals who do not live in the same household are present, which includes indoor office settings. The explicit inclusion of businesses in the definition of indoor public setting can be found in the Los Angeles County September 28, 2021 Order of the Health Officer and referenced in CDPH’s Face Coverings FAQs.
The New Guidance is in addition to requirements set forth in Cal/OSHA’s Emergency Temporary Standard (ETS) and, in some workplaces, Cal/OSHA’s Aerosol Transmissible Disease Standard.
Recommended Versus Required Types of Face Coverings
Although the New Guidance requires everyone wear a face covering in “indoor public settings,” it also recommends use of a surgical mask or a higher-level respirator (i.e., N95s) as opposed to a cloth mask. Surgical masks and respirators are only required for unvaccinated workers in certain high-risk congregate and other healthcare settings as set forth in the CDPH’s July 26, 2021 Order.
Exemptions to the New Universal Face Covering Requirement
The New Guidance, and CDPH’s recently updated Face Coverings FAQs, include exemptions to the face covering requirement, many of which overlap with exemptions set forth in the ETS. Under both the New Guidance/Face Coverings FAQs and the ETS, individuals may remove a face covering if: (1) they have a medical condition, mental health condition, or disability that prevents its use; (2) an individual is hearing impaired or is communicating with an individual who is hearing impaired; (3) wearing a mask would create a work-related risk; (4) actively eating or drinking (the ETS requires that unvaccinated individuals be separated by at least 6 feet from others while doing so); (5) alone in an enclosed office or room (the ETS also permits removal of a face covering if alone in a vehicle); and (6) wearing a respirator.
The New Guidance/Face Coverings FAQs further allow an individual to remove a face covering when: (1) actively performing at an indoor live or recorded setting (i.e., singing, acting, etc.), although pre-performance screening is recommended; (2) obtaining a medical or cosmetic service involving the nose or face, which only requires temporary removal of the face covering to perform the service; and (3) otherwise exempted by CDPH guidance.
Interaction with Local Masking Requirements
As confirmed by CDPH’s Face Coverings FAQs, local health jurisdictions may put into place more restrictive requirements based on local conditions. If a local restriction went into effect prior to December 13, 2021, and provided for indoor masking in public setting irrespective of vaccination status, the local health order continues to apply. This is true in Contra Costa and San Mateo, among other jurisdictions.
Employers should review any local requirements and consult with counsel to ensure compliance.