California will once again require residents to wear masks in indoor public settings everywhere in the state irrespective of vaccine status, amid growing uncertainty surrounding the rapid spread of the Omicron COVID-19 variant and rising case rates as the holidays approach (the “Mask Mandate”). The Mask Mandate, issued by the California Department of Public Health (“CDPH”), will go into effect on December 15, 2021, and will remain in effect until at least January 15, 2022. The Mask Mandate can be found here: https://www.cdph.ca.gov/Programs/OPA/Pages/NR21-352.aspx. The following individuals are exempt from the Mask Mandate:
- Persons younger than two years old. Very young children must not wear a mask because of the risk of suffocation.
- 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 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 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.
On December 13, 2021, the CDPH issued “Guidance for the Use of Face Coverings” (the “Guidance”), which can be found here: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/guidance-for-face-coverings.aspx. The Mask Mandate, if taken literally, would prevent people from eating or drinking in indoor restaurants because it does not provide any express exception for the consumption of food or beverages. Also, unlike some local Health Orders, such as the Order currently in effect in Los Angeles County, there is no exception for persons working alone in an office or persons who might be required to remove their mask for a short period of time to eat or drink.
With respect to workplaces, the Guidance simply states that employers are subject to Cal/OSHA COVID-19 Emergency Temporary Standards (“ETS”), which can be found here: https://www.dir.ca.gov/dosh/coronavirus/ETS.html. (Cal/OSHA has created an ETS “fact sheet” for employers, which can be found here: https://www.dir.ca.gov/dosh/dosh_publications/COVIDOnePageFS.pdf.) Unfortunately, the Guidance does not provide any additional information or direction for employers, which will likely create some confusion in two important ways. First, while the Mask Mandate states that everyone must wear a mask in public settings irrespective of vaccine status, the ETS states that employees who are vaccinated are not required to wear a mask at work, except for certain situations during outbreaks or in settings where the CDPH requires all persons to wear them, which presumably would be the “public settings” set forth in the Mask Mandate. However, neither the Mask Mandate, nor the Guidance, defines the phrase “public settings,” so it is not clear whether an office of a company not open to the public is a “public setting” for purposes of the Mask Mandate, although a reasonable interpretation of “public settings” would exclude such an office. (The CDPH’s previous mask guidance from July 28, 2021 (which can be found here: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/guidance-for-face-coverings-07-28-2021.aspx) stated that masks were required for unvaccinated individuals in “indoor public settings and businesses” and gave as examples the following establishments: retail, restaurants, theaters, family entertainment centers, meetings, state and local government offices serving the public. Conspicuously absent from the examples given were offices of companies that are not open to the public.) Second, while the ETS provides for certain exceptions for unvaccinated employees who are required to wear masks at work (for example, when an employee is alone in a room or is eating or drinking at least six feet away from anyone else), the Mask Mandate does not provide for the same exceptions. Accordingly, there is an open question whether California employers that are not open to public must require their employees to wear masks indoors irrespective of vaccine status. There is also an open question whether the exceptions outlined in the ETS apply to all California employers under the Mask Mandate. To play it safe, California employers may want to consider requiring their employees to wear masks indoors irrespective of vaccine status until at least January 15, 2022, unless an employee falls under one of the ETS exceptions.
We will provide updates on any new orders or guidance as they develop.