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Volume XI, Number 205

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Face-Covering Considerations for Retailers in a Post-Color Tiered California

California has issued new guidance for the use of face coverings that will take effect on June 15, 2021.  The guidance impacts retailers and coincides with news that approximately 46% of Californians are now fully vaccinated.  Although the new guidance, published by the California Department of Public Health (“CDPH”) will impact how retailers operate vis-à-vis the public patrons, it does not impact employer-employee obligations.  Those obligations are still governed by the Cal/OSHA COVID-19 Emergency Temporary Standards (ETS), and in some cases, the Cal/OSHA Aerosol Transmissible Diseases Standard.  You can find our blog about these standards here.

The CDPH Guidance affecting patrons will require masks for unvaccinated individuals “in indoor public settings and businesses (examples: retail, restaurants, theaters, family entertainment centers, meetings, state and local government offices serving the public).”  In these types of settings, businesses have three options to choose from:

  • Provide information to all patrons, guests and attendees regarding vaccination requirements and allow vaccinated individuals to self-attest that they are in compliance prior to entry.

  • Implement vaccine verification to determine whether individuals are required to wear a mask.

  • Require all patrons to wear masks.

The CDPH Guidance expressly states that no person can be prevented from wearing a mask as a condition of participation in an activity or entry into a business.

Despite the face-covering mandate, four types of individuals are exempted from wearing masks at all times:

  • Certain children.  Persons younger than two years old.  Very young children must not wear a mask because of the risk of suffocation.

  • Persons with medical conditions.  Persons with a medical condition, mental health condition, or disability that prevents wearing a mask.  This includes persons with a medical condition for whom wearing a mask could obstruct breathing or who are unconscious, incapacitated, or otherwise unable to remove a mask without assistance.

  • Persons with hearing impairments.  Persons who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication.

  • Persons with certain jobs.  Persons for whom wearing a mask would create a risk to the person related to their work, as determined by local, state, or federal regulators or workplace safety guidelines.

Retail businesses should choose from one of these three options and create a plan swiftly.  It is essential that your workforce also has adequate training in dealing with your Company’s action plan and that a cohesive strategy is implemented for statewide businesses.  While California has lifted the majority of its COVID-19 restrictions, businesses should nevertheless be prepared to address lingering impacts for the foreseeable future, and consider these impacts on their customers and workforce.

The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation.  This article is not intended to be an unequivocal, one-size fits all guidance, but instead represents our interpretation of where applicable law currently and generally stands.  This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.

Copyright © 2021, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume XI, Number 166
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About this Author

David B. Chidlaw, Labor, Employment, Attorney, Sheppard Mullin, Law Firm
Partner

David B. Chidlaw is a partner in the firm's San Diego office where he specializes in labor and employment matters on behalf of management, employers and high net worth individuals.

Areas of Practice

Mr. Chidlaw has broad experience counseling and defending employers on a wide variety of employment issues, including immigration. He has substantial experience representing employers in representative and class actions under Federal and California wage and hour law, including prevailing wage matters. He has defended employers in wrongful termination and...

619-335-6614
Brian Fong, Sheppard Mullin Law Firm, Labor and Employment Attorney
Associate

Brian S. Fong is an associate in the Labor and Employment Practice Group in the firm's San Francisco office.

415-774-2977
Ashley Hirano, Lawyer, Sheppard Mullin, Labor and Employment Practice Group
Associate

Ms. Hirano is an associate in the Labor and Employment Practice Group in the firm's San Diego office.

Areas of Practice

Ms. Hirano counsels employers and human resources professionals in all aspects of employment law compliance and best practices, including the drafting, review and implementation of policies and procedures; wage and hour audits; executive compensation; and mass layoffs and reorganizations.  Ms. Hirano also handles employment-related litigation, including wage and hour class...

619-338-6547
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