By Chantelle C. EganBernard OlshanskyPatrick D. Joyce, and Ilana Morady

Seyfarth Synopsis: On February 28, 2022, California’s Governor Newsom issued a press release lifting California’s mask requirements for unvaccinated individuals in indoor settings, downgrading the former requirement to a strong recommendation, effective March 1, 2022.  The same day, the California Department of Public Health (“CDPH”) published updated guidance, tracking Governor Newsom’s announcement. Later on February 28, Governor Newsom issued a press release and Executive Order overriding Cal/OSHA’s COVID-19 Emergency Temporary Standards, suspending the agency’s workplace requirement that unvaccinated workers wear masks in most indoor settings. Several localities have followed suit.

Until Now, California Has Consistently Mandated Masks for the Unvaccinated Indoors Throughout the Pandemic

California’s mask-related reactions to the ever-changing COVID-19 landscape over the last two years have been well-documented hereherehere, and here.  Most recently, on December 16, 2021, Cal/OSHA readopted its COVID-19 Emergency Temporary Standards (“ETS”), effective January 14, 2022, which required unvaccinated employees to wear a well-fitted mask and also required that any additional masking required by the CDPH be enforced in the workplace. However, in response to the holiday Omicron variant surge, the CDPH required that all individuals mask up, regardless of vaccination status, from December 15, 2021 until February 15, 2022.

Mask Requirement Eased for General Public in Indoor Settings

On February 7, 2022, the CDPH updated its masking guidelines, effective February 16, 2022, allowing vaccinated individuals to shed masks but requiring unvaccinated individuals to wear masks in indoor public settings, including offices and other workplaces. This again aligned the CDPH with Cal/OSHA.

Shortly thereafter, on February 28, 2022, Governor Newsom announced California was transitioning from its longstanding practice of requiring unvaccinated individuals to mask up indoors in nearly all circumstances to a strong recommendation that they do so in most settings, effective March 1, 2022, essentially allowing all individuals to remove masks indoors, except in the workplace under the Cal/OSHA ETS.  This brought California in line with other West Coast states.  Coordinating with California, the governors of Oregon and Washington simultaneously announced that masking for the unvaccinated would no longer be required as of 11:59 pm on March 11, 2022 in the Northwest.

Following Governor Newsom’s announcement, the CDPH issued updated masking guidance.  The CDPH called attention to three main updates:

  1. Effective March 1, 2022, the requirement that unvaccinated individuals mask in indoor public settings became a strong recommendation that all persons, regardless of vaccine status, continue indoor masking;
  2. Universal masking will remain required in specified high-risk settings; and
  3. After March 11, 2022, the universal masking requirement for K-12 schools and childcare settings will end. The CDPH, however, continues to strongly recommend that individuals in these settings continue to mask in indoor settings when the universal masking requirement lifts.

Masking Still Required in High-Risk Settings.  Subject to certain exemptions, the CDPH’s masking requirement for all, regardless of vaccination status, continues in the following settings:

  • Indoors in K-12 schools (through March 11, 2022)
  • On public transit (examples: airplanes, ships, ferries, trains, subways, buses, taxis, and ride-shares) and in transportation hubs (examples: airport, bus terminal, marina, train station, seaport or other port, subway station, or any other area that provides transportation)
  • Emergency shelters and cooling and heating centers
  • Healthcare settings (applies to all healthcare settings, including those that are not covered by the State Health Officer Order issued on July 26, 2021)
  • State and local correctional facilities and detention centers
  • Homeless shelters
  • Long Term Care Settings & Adult and Senior Care Facilities

Guidance for Guest and Customer Masking. The CDPH guidance also includes suggestions for businesses, venue operators, and event hosts to assist them in navigating this new recommendation standard.  The CDPH recommends, but does not require, businesses to:

  • Provide information to all patrons, guests and attendees regarding masking recommendations for all persons, regardless of vaccine status.
  • Provide information to all patrons, guests and attendees to consider better fit and filtration for masks, such as using surgical masks or higher-level respirators (e.g., N95s, KN95s, KF94s) over cloth masks.
  • Require all patrons to wear masks, especially when risk in the community may be high, or if those being served are at high-risk for severe disease or illness.
  • Require attendees who do not provide proof of vaccination to enter indoor Mega Events to continue masking during the event, especially when not actively eating or drinking.

Now, except in specified high-risk settings, California only strongly recommends indoor mask-wearing for all Californians, regardless of vaccination status.

Indoor Mask Requirement Eased for Employees

With the issuance of the February 28, 2022 CDPH guidance, it was unclear whether or how the new masking recommendations applied to employees because the Cal/OSHA ETS continued to require masking for unvaccinated employees in the workplace, but also required compliance with any masking order from the CDPH.

Late in the evening of February 28, 2022, Governor Newsom resolved the paradox by issuing a short Executive Order that suspended the Cal/OSHA ETS requirement that unvaccinated employees wear masks while indoors or in vehicles (i.e., Section 3205(c)(6)(A)) of the ETS), effective immediately.  As a result, when the CDPH order went into effect on March 1, it lifted not only the indoor masking requirement for the unvaccinated general public, but also employees.

Importantly, other sections of the Cal/OSHA ETS that require face coverings in certain scenarios have not been suspended. Which means that for the time being, face coverings are still required in the workplace as follows:

  • If the employer has onsite indoor health screening (something that most employers have moved away from by now), the employees being screened and the screeners need to wear face coverings, regardless of vaccination status.
  • In the event of an “outbreak” or a “major outbreak,” employees in the exposed group must wear face coverings when indoors, regardless of vaccination status.
  • For employees who have had a COVID-19 exposure and are either exempt from quarantine or ending their quarantine after Day 5, and for employees who have tested positive for COVID-19 and are returning to work after Day 5. Details available here.

ETS Re-Adoption Period Extended by 21 Days to May 6, 2022

In addition, the Governor’s February 28 Executive Order extended the 90-day effective period of the operative ETS by 21 days to May 6, 2022. Employers should be on the lookout for new changes to the ETS at that time.

California Localities Follow the State

As of the time of publication, several major California cities and counties that previously had different masking requirements indicated their plans to come into line with California’s new masking recommendation:  Los Angeles County (announced a tentative plan to roll back indoor mask mandate on March 4, 2022 following the CDC’s COVID designation); Los Angeles (City) (on February 25, 2022, Mayor Garcetti tweeted that the City would align with the County’s guidance on masking); Santa Clara County (announced a plan to lift indoor mask mandate as of March 2, 2022), and San Francisco (announced alignment with State to “recommend, but not require” masks in schools and child care settings after March 11).

Workplace Solutions

As always, Seyfarth will stay on top of the constantly changing COVID-19 landscape, and the challenges it poses to employers.  If you have any questions, please don’t hesitate to reach out to one of the authors of this post or a member of our Workplace Safety team.

Edited by Elizabeth Levy