Key Considerations as California Moves to Lift the Mask Mandate

As you may have heard, the Centers for Disease Control and Prevention (“CDC”) recently advised that fully vaccinated individuals may resume activities (such as working indoors without masks or social distancing) as they did prior to the pandemic.[1] The CDC considers individuals “fully vaccinated” if two weeks have passed since their second dose in a two-dose series (ex: Moderna or Pfizer vaccine), or two weeks after the single dose vaccine, such as Johnson & Johnson. However, the CDC has indicated that while most prior activities can be resumed without restrictions, people should be aware of the relevant state and local guidelines, as well as specific guidance for their workplace or businesses they frequent. Since California officials are planning to lift most of the remaining COVID-19 business restrictions on June 15, many employers are facing difficult questions on how to go about implementing these new guidelines.  It’s important to note that Occupational Safety and Health Administration (“OSHA”) requires employers to provide a workplace free of safety hazards. Cal/OSHA, the California division of OSHA, as set forth its Emergency Temporary Standards (“ETS”), requires employers to provide workers with wear protective face coverings and maintain social distancing at the workplace. On June 3rd, Cal/OSHA voted to revised the ETS to require the workplace 6-feet physical distancing requirements through July 31, 2021 (except in a location where all employees are vaccinated, or otherwise reasonably accommodated or excepted from obtaining the vaccine). Beginning July 31, 2021, Cal/OSHA’s revised ETS also requires employers to provide respirators (such as N95 masks) for voluntary use to all employees working indoors who are not fully vaccinated, and are required to train and instructed those employees on how to properly wear the respirators and how to perform a seal check.  As a business owner tasked with providing a safe, hazard-free workplace, you may be wondering about the best approach for your employees and customers. As MMC wrote in previous blog post about the COVID-19 vaccine, many employers have chosen to strongly encourage their workforce to get the vaccine, as opposed to requiring it, due to various reasonable accommodation concerns. The Equal Employment Opportunity Commission (“EEOC”) indicated in prior months that employers are permitted to ask whether an employee is vaccinated – however, employers are strongly discouraged from inquiring further as that may cause the employee to reveal his or her confidential medical or personal information. Regarding loosening the mask mandate, it may be prudent for employers to consider the ramifications of creating different obligations for vaccinated vs. unvaccinated employees and the potential risk for unlawful discrimination based on a protected class. All in all, it is a good idea for employers to take the safest, most protective approach when it comes to revising their COVID workplace policies. Since many employees have expressed reluctance to completely forgo wearing masks at work, from June 15th onward, employers may want to consider encouraging employees (vaccinated or otherwise) to continue wearing masks, frequently washing hands and using sanitizer, and maintaining remote work policies where applicable. For those employers who choose to forgo requiring fully vaccinated employees to wear masks in the workplace, managers should closely watch the workplace to ensure no harassment or bullying is taking place against unvaccinated workers or those who voluntarily choose to carry on wearing masks. Because this is a sensitive and continually-shifting issue, we encourage you to review the Cal/OSHA revised ETS in detail as it may apply to your business once finally approved by the Office of Administrative Law (“OAL”). As always please feel free to reach out to the HR Services team at MMC to draft revised COVID workplace policies or assist with any concerns you may have.