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 July 28, 2021, the California Department of Public Health (CDPH) issued new guidance calling for masking measures to prevent the spread of the COVID-19 Delta variant. The guidance provides information about higher-risk settings where masks may prevent transmission to people with higher risk of infection (those who are unvaccinated or immunosuppressed), to persons with prolonged or cumulative exposure (e.g., employees), or to persons with unknown vaccination status. Based on this guidance, the CDPH is now recommending universal mask use for indoor public settings statewide, regardless of vaccination status, which follows the Centers for Disease Control and Prevention's guidance issued on July 27, 2021.
While the CDPH guidance does not alter requirements set forth under Cal/OSHA’s COVID-19 Emergency Temporary Standards (ETS) or in some workplaces the Cal/OSHA’s Aerosol Transmissible Diseases (ATD) Standard, it aims to add an extra precautionary measure, especially in communities with high transmission rates. According to the CDC’s new guidance, more than 90% of California's population is designated as being at substantial or high risk of COVID-19 transmission.
The shift in CDPH guidance is based on low state-wide vaccination rates and the recent rise in COVID-19 cases and hospitalizations. While most of these cases are among the unvaccinated, breakthrough cases (i.e., where a fully vaccinated person tests positive for COVID-19) are also on the rise. The Delta variant is twice as contagious as previous strains of COVID-19, and now accounts for over 80% of COVID-19 cases in California. The CDPH’s new guidance aims to motivate businesses and local communities to encourage employees to get vaccinated.
California has recommended universal indoor masking for all persons in K-12 schools, including teachers, staff, students and visitors, regardless of their vaccination status.
Current Masking Requirements
Masks are required for all individuals in the following indoor settings, regardless of vaccination status:
- On public transit, such as airplanes, ferries, trains, buses, taxis, and ride-shares, and in transportation hubs such as airport and bus terminals;
- Indoors in K-12 schools or daycare facilities;
- Emergency shelters; and
- Cooling centers (i.e., a cool site or air-conditioned facility designed to provide relief and protection during extreme heat).
Masks (and possibly N95s or surgical masks) are required for all individuals in the following indoor settings, regardless of vaccination status:
- Healthcare settings;
- State and local correctional facilities and detention centers;
- Homeless shelters;
- Long-term care settings; and
- Adult and senior care facilities.
Additionally, masks are required for unvaccinated individuals in indoor public settings and businesses (e.g., retail, restaurants, theaters, family entertainment centers, meetings, state and local government offices serving the public). Where masks are required for unvaccinated persons, businesses, venue operators or hosts may choose to (1) allow patrons to self-attest; (2) implement a vaccine verification to determine whether an individual is required to wear a mask; or (3) require all patrons to wear a mask regardless of vaccination status.
What Does This Mean for California Employers?
Cal/OSHA can now enforce masking indoors for all employers with unvaccinated employees in the workplace because CDPH states masking provides higher protection to unvaccinated employees. Employers that revised their COVID-19 Prevention Plans to eliminate masking for fully vaccinated employees and stopped enforcing the use of masks for vaccinated employees should consider revisiting those plans and requiring masking for everyone in the workplace. Employers should also watch for more stringent local guidance, reevaluate exposure control plans, determine what changes need to be incorporated to reduce risk of exposure to employees, and follow the rules that may apply to their workforce.