Employment Law Bulletin | June 11, 2021

To Mask or Not to Mask – What Rules Apply to the Workplace?

Californians have been anxiously awaiting the arrival of June 15 when Governor Newsom has promised to “fully reopen the economy” and a return to “usual operations” by eliminating the colored tiers and face covering mandates, and lifting capacity and distancing requirements for most businesses and activities.

In the last several days, federal and state government agencies have issued a flurry of conflicting regulations and guidance leaving everyone confused and wondering, what does it all mean?  The answer depends on who’s asking and what day it is.  This article will focus on what we know today, but unfortunately, that is subject to change.

Rules for the General Public

For the general public, the California Department of Public Health’s (CDPH) Guidance (found here [1]) will apply from June 15 until at least October 1, 2021:

Vaccine Verification/
Negative Testing
Required for indoor mega events (5,000+ people)
Recommended for outdoor mega events (10,000+ people)
Capacity Limitations No restrictions
Physical Distancing No restrictions for attendees, customers and guests (Note: no reference to workers employed by the business)
Face Coverings Follow current CDPH Guidance for Face Coverings*
Travelers Follow CDC recommendations [2] and CDPH Travel Advisory [3]

*The most recent CDPH Guidance, issued on June 9, 2021 (found here [4])  has two sets of recommendations – guidance effective before June 15, and guidance effective after June 15, 2021.  After June 15, fully vaccinated individuals are not required to wear masks except in limited settings (on public transit; in schools, childcare and other youth settings; healthcare settings; detention and correctional facilities; homeless shelters, emergency shelters and cooling centers).  Individuals who are not fully vaccinated would be required to wear masks in all indoor public settings and businesses.  “Fully vaccinated” is defined as having received all required COVID-19 doses and completing a 14-day post-vaccination period.

The County of Sonoma has announced that it will follow the CDPH guidance for face coverings, but businesses must follow State face covering guidance, industry sector guidance, and Cal OSHA regulations for employees.  While the County of Sonoma is not issuing its own local ordinance on the subject, other Counties may develop their own guidelines that are more restrictive than the federal and state guidelines. Check your county’s department of public health to see if any local ordinances apply to your business.

Rules for the Workplace

While we can expect a return to normal for the general public and our personal lives on June 15, the workplace rules businesses must follow for their employees are far more restrictive, at least for now.  The California Occupational Safety and Health Administration Emergency Temporary Standards (“ETS”) applies to all California workplaces.  The hitch – the ETS currently in effect was issued in November 2020, long before vaccines became available.  Although Cal-OSHA’s recent proposed updates to the ETS, which reflected the availability of vaccines, were initially approved, they were withdrawn on June 9.  Cal-OSHA has returned to the drawing board to draft a proposed ETS that is more consistent with the CDPH Guidelines issued on June 9, 2021.

For now, the November 2020 ETS face covering and other workplace requirements (outlined below) apply to the workplace until June 27, 2021, when an updated ETS that takes into account vaccination status is anticipated to go into effect.  At the time of this publication, the proposal is in flux, but is due to be issued before the June 17, 2021 Cal-OSHA Standards Board meeting.  If approved at the meeting, the new ETS will go to the Office of Administrative Law for approval, with the earliest possible effective date being June 27, 2021.

Vaccine Verification/
Negative Testing
Not addressed; no effect on the workplace
Capacity Limitations No specific restrictions, however capacity must be limited if necessary to comply with social distancing requirements.
Physical Distancing Employees must maintain six feet of distance at all times regardless of vaccination status; solid separation barriers are required at fixed work locations where six feet of physical distancing is not possible
Face Coverings Must be worn in the workplace regardless of vaccination status (subject to very limited restrictions)

We’ll be monitoring Cal-OSHA proceedings and announce the new ETS when it becomes effective.  In the meantime, we recommend that you prepare your employees to continue working with face coverings and physical distancing through the end of this month.

If you need help determining which rules apply to your business or how to implement them, please reach out to an SMT employment law attorney. We’re here to help.

Lisa Ann Hilario [5]

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SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil [6]  | Lisa Ann Hilario [5] | Kari Brown [7]