Cal/OSHA Relaxes Workplace Mask Requirements

Fully vaccinated workers in California are no longer required to wear masks in many circumstances, according to the California Division of Occupational Safety and Health's (Cal/OSHA's) latest revisions to COVID-19 safety rules. But some restrictions remain in place, particularly for unvaccinated workers. 

Cal/OSHA updated the state's COVID-19 Prevention Emergency Temporary Standards (ETS) on June 17, and Gov. Gavin Newsom signed an executive order to allow the revisions to take effect immediately.

"Most employers can now allow their vaccinated employees to work without face coverings and without social distancing," explained Amanda Osowski, an attorney with Hanson Bridgett in San Francisco. "This will, however, require that employers maintain documentation of their employees' vaccination status."

Cal/OSHA initially intended to prolong workplace mask rules for all employees, but the standards were updated to align with new guidance from federal and state public health authorities.

"Many employers were very surprised when Cal/OSHA initially took the position that vaccinated employees would have to continue wearing masks, and so they are very pleased with this update," observed Martha Doty, an attorney with Alston & Bird in Los Angeles.

Michael Warren, an attorney with McManis Faulkner in San Jose, Calif., noted that employers still have important obligations under the revised rules—especially for unvaccinated employees. Employees who are not vaccinated may remove their masks when working outdoors but must continue to wear masks in many indoor settings.

New Mask Rules

Employers must document inoculation status before allowing fully vaccinated employees to go mask-free while indoors, according to Cal/OSHA.

Employers should note that the California Department of Public Health still requires employees in certain indoor settings to wear a face mask regardless of vaccination status, including:

• On public transit.
• In K-12 educational facilities.
• In health care and long-term-care settings.
• In correctional and detention facilities and shelters.

Additionally, employers must adhere to special requirements during a COVID-19 outbreak, which is defined as three or more cases in an exposed group of employees. "In outbreaks, all employees must wear face coverings indoors and outdoors when six-feet physical distancing cannot be maintained, regardless of vaccination status," Cal/OSHA said.

While unvaccinated employees no longer have to wear masks in many outdoor settings, Cal/OSHA still requires them to wear face coverings when indoors and in vehicles unless they are alone, eating or drinking, or require an accommodation. Employers may have to find an alternative to face masks when job duties make wearing a mask infeasible or hazardous.

"Though face coverings are not required outdoors, employers must communicate to workers that face coverings are recommended for unvaccinated persons outdoors where six feet of physical distancing cannot be maintained," Cal/OSHA said.

Employers are required to provide face coverings to unvaccinated employees and "upon request" to vaccinated workers.

Tracking Vaccination Status

California employers that want to relax their indoor mask policies must document employee vaccination status and keep records confidential. Cal/OSHA did not tell employees how to collect vaccination information, but provided the following options as examples:

• Keeping a copy of an employee's vaccine card, an image of the vaccine card or a health care document showing vaccination status.
• Keeping a record of the employees who presented proof but not the vaccine record itself.
• Keeping a record of employees who self-attest to their vaccination status.

"Nothing in the revised ETS prevents an employer from requiring all employees to wear a face covering instead of having a documentation process," the agency said.

Notably, employees don't have to disclose if they are vaccinated. "In that case, the employer must treat the employee as unvaccinated and must not take disciplinary or discriminatory action against the employee," Cal/OSHA explained. Additionally, employers are prohibited from retaliating against employees who choose to continue wearing face coverings, even when they are fully vaccinated.

Employers also must check local requirements. "Some municipalities had attestation requirements that went beyond state or federal law," Doty said. "Employers should always check the websites for the counties in which they have employees to determine if any additional or ongoing requirements exist."

Osowski said counties, cities and most businesses will have discretion to retain COVID-19 restrictions with respect to face coverings, social distancing and other protections.

Continuing Obligations

Despite more-relaxed requirements under the revised ETS, Cal/OSHA said employers must continue to:

• Maintain a written COVID-19 prevention program.
• Provide employee training on the prevention plan and employees' rights under the ETS.
• Notify public health departments about COVID-19 outbreaks.
• Notify employees about workplace exposures and close contacts.
• Offer testing after potential exposures.
• Respond to COVID-19 cases and outbreaks.
• Pay employees who are excluded from the workplace for certain COVID-19-related reasons.
• Follow basic prevention requirements for employer-provided housing and transportation.

Employers should anticipate further guidance and possible changes to the revised ETS, Osowski said. "While the ETS is set to expire, labor advocates are expected to call for a permanent general industry standard on infectious aerosol diseases, including COVID-19."

Revising Policies

Employers should review the revised rules carefully and determine how they apply to their particular workplace, Warren said. "Employers that want to relax COVID-19 safety protocols in the workplace must first have a clear understanding of all the COVID-19 rules that apply to their businesses."  

Employers should also be aware of their employees' comfort level with relaxing workplace safety protocols, he said. A phased approach to relaxing protocols may be advisable for maintaining employee morale or avoiding resistance to policy changes.

Warren recommended that employers be as flexible as possible to account for employees' particular circumstances. "The changes may not impact every employee the same way, and employers should be attentive to whether a particular employee's situation triggers a legal requirement to provide a reasonable accommodation or other legal obligation."

Doty said employers should be aware that the relaxed requirements may cause tension between vaccinated and unvaccinated employees. "Be sensitive to those types of issues and prepare your managers and HR team to anticipate and address them."