On December 13, 2021, the California Department of Public Health (“CDPH”) announced new Guidance for the Use of Face Coverings (“CDPH Guidance”), implementing a mandatory mask mandate for individuals (employees and patrons) in all indoor public settings, irrespective of vaccination status, beginning on December 15, 2021 through at least January 15, 2022.  The CDPH Guidance requires that masks be worn by all individuals over the age of two, unless exempt for disability-related or medical condition-based reasons, and recommends the use of surgical masks or higher-level respirators.

FAQs issued by the CDPH specify that the CDPH Guidance applies to workplaces, and clarify that local public health regulations remain in effect for localities that have previously adopted face covering measures prior to issuance of the CDPH Guidance that apply regardless of vaccination status. That is, the CDPH Guidance only applies to local health jurisdictions that do not have existing indoor masking requirements.  Notably, the San Francisco Department of Public Health (“SFDPH”) has taken the position, in its updated Order and FAQs, that its own masking rules remain in place—including exemptions for “stable cohorts” with 100% vaccination rates, among other criteria.  Marin County and Contra Costa County have taken similar positions regarding the applicability of local health order mask exceptions.  It remains unclear whether local mask exceptions apply given the CDPH Guidance masking rules.

The CDPH also updated the Beyond the Blueprint for Industry and Business Sectors with notable revisions to requirements for “mega events” (indoor events of 1,000 people or more and outdoor events of 10,000 or more), also effective December 15, 2021.  Mega event attendees will be required to show either proof of vaccination or a negative COVID-19 test result—within two days from the event if using a PCR test and within one day of the event if using an antigen test.  The prior rule required a negative test within 72 hours of the event.  Self-attestation is not a permitted verification method for mega event attendance.

As the CDPH Guidance notes, employers also remain subject to the California Division of Occupational Health and Safety (“Cal/OSHA”) COVID-19 Prevention Emergency Temporary Standard (“ETS”), which we wrote about here, or the Cal/OSHA Aerosol Transmissible Diseases Standard.

Approved Revisions to Cal/OSHA Emergency Temporary Standards

On Thursday, December 16, 2021, the Cal/OSHA Occupational Safety and Health Standards Board (“Board”) approved proposed ETS revisions (“Revisions”) which go into effect January 14, 2022, and remain effective until April 14, 2022.  The Revisions do not include a universal mask mandate similar to that in the CDPH Guidance, but Cal/OSHA may clarify this issue in future FAQs (discussed below) in light of the CDPH Guidance.

Important Changes in the Revisions include the following:

• Employers must offer testing to all employees who have had close contact (as defined by subsection § 3205(b)(1) of the Revisions)—now including asymptomatic fully vaccinated employees—at no cost to the employee during paid working time, unless the employee was a COVID-19 case who previously returned to work under the detailed criteria outlined in subsection 3205(c)(3)(B)(5). The testing cannot be both self-administered and self-read.

• Employees who have had close contact do not need to be excluded from the workplace if the employee wears a mask and physically distances in the workplace for 14 days from the date of the employee’s last known close contact, and:

  1. the employee was vaccinated at the time of close contact and is asymptomatic; or

  2. the employee was a COVID-19 case who returned to work meeting the return work criteria under subsection 3205(c)(10)(A)—at least 24 hours have passed since a fever of 100.4 degrees Fahrenheit or higher has resolved without the use of fever-reducing medications, COVID-19 symptoms have improved and at least 10 days have passed since COVID-19 symptoms first appeared; or

  3. the employee was a COVID-19 case who returned to work meeting the return work criteria under subsection 3205(c)(10)(B)—a minimum of 10 days have passed since the date of specimen collection of their first positive COVID-19 test.

• Asymptomatic employees who have had close contact can now return to work after 14 days from the date of the employee’s last known close contact, or sooner if either:

  1. 10 days have passed since the date of the employee’s last known close contact, and the employee wears a mask and physically distances in the workplace for 14 days from the date of last known close contact; or

  2. 7 days have passed since the date of the employee’s last known close contact, the employee tests negative using COVID-19 test with a specimen taken 5 days since last known contact, and the employee wears a mask and physically distances in the workplace for 14 days from date of last known close contact.

• Symptomatic employees who have had close contact can now only return to work unless the employee meets the return work criteria under subsection 3205(c)(10)(A)—at least 24 hours have passed since a fever of 100.4 degrees Fahrenheit or higher has resolved without the use of fever-reducing medications, COVID-19 symptoms have improved, and at least 10 days have passed since COVID-19 symptoms first appeared.

Employers should also be aware that the pay continuation provision for employees who are excluded from the workplace unless the employer can establish that the exposure was not work-related remains in effect.  The requirements that employers implement written COVID-19 Prevention Programs and provide specific safety training to employees also remain in effect.  We wrote about that here.

We will continue to monitor Cal/OSHA for any additional information and guidance regarding the Revisions.  During the meeting, Cal/OSHA indicated that they would be releasing FAQs to address public comments and any ambiguities in the revisions.

Employers should remain aware of their local ordinances and monitor their local health departments for changes to COVID-19 masking workplace requirements; and consult legal counsel prior to making any major changes to their protocols, policies and procedures.

*Catherine Kang, a Law Clerk – Admission Pending (not admitted to the practice of law) in the firm’s Los Angeles office, contributed to the preparation of this post.