Face Coverings and Social Distancing Remain a Reality for California Businesses After Cal/OSHA Delays Vote

By Charles P. Keller, Brian J. Mills, and Kevin M. Brown

On May 13, 2021, the Centers for Disease Control and Prevention (CDC) made an unexpected change in its guidance for fully vaccinated people as to the use of face coverings and physical distancing.  The announcement that “Fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal or territorial laws, rules and regulations, including local business and workplace guidance,” has many employers asking questions.  Confusion lingers as state and local officials in California still mandate facemasks.  Additionally, the Cal/OSHA Standards Board delayed voting on an Emergency Temporary Standard (ETS) COVID-19 standard until June 3, 2021. The delay will allow the Board to consider the surprise CDC announcement.

Impact on California Employers

Despite the CDC’s announcement, face coverings and social distancing are still required in California—at least for now.  Cal/OSHA implemented the first ETS on November 30, 2020.  Among other requirements, the ETS requires face coverings and social distancing in the workplace.  The Cal/OSHA Standards Board was scheduled to convene on May 20, 2021, to consider numerous revisions to the ETS, including face coverings and social distancing requirements in the workplace.  But based on the May 13, 2021 CDC guidance to allow fully-vaccinated individuals to forego masks in most situations and the May 17, 2021 California Health & Human Services Agency Secretary expressing that California intended to implement the CDC’s masking guidance on June 15, 2021, Cal/OSHA asked the Standards Board not to adopt the new draft ETS proposal on May 20, 2021. 

Instead, the Board will release the proposed new language for public comment on May 28th and plans to vote during a June 3, 2021 emergency session.  This timing should allow the revised ETS to take effect by June 15th, the date Governor Gavin Newsom announced as the official state reopening without face coverings.  So while it remains to be seen exactly how Cal/OSHA will apply the CDC’s recent guidance, physical distancing and face covering remain a staple of California workplaces for the time being.  Employers should also continue to consult relevant guidance issued by their city and county officials even after June 15, 2021, to ensure they are fully compliant, as it is possible local guidance may be more restrictive than the new Cal/OSHA standard.

Establishing Vaccination Policies

As employers prepare to respond to the new Cal/OSHA ETS that will likely reduce or eliminate mask requirements for fully vaccinated employees, many employers are creating or evaluating vaccination policies.  First, employers can generally require vaccination of their employees in the workplace subject to certain accommodations for medical and/or sincerely held religious reasons.  Even though the Equal Employment Opportunity Commission and the California Department of Fair Employment and Housing reaffirmed that position, many employers are not requiring COVID-19 vaccinations, but are instead only encouraging them.  Employers are also permitted to verify vaccination status by checking vaccination cards so long as they do not request other medical information that may violate employees’ privacy.  Copying such vaccination documentation requires the employer to treat such copies as a medical record.  In fact, one California County—Santa Clara—is requiring employers to verify the vaccination status of their employees.  Employees have the right to refuse to answer, but employers are then required to treat those employees as unvaccinated. Finally, individuals are considered to be fully vaccinated two weeks after the final required dose—either the second shot for the Pfizer or Moderna vaccines or the single shot of the Johnson & Johnson vaccine.

* * *

Snell & Wilmer attorneys will continue to monitor federal, state and local mandates related to COVID-19 vaccinations, face coverings and physical distancing.