While employees may cheer the news that the U.S. Centers for Disease Control and Prevention (CDC) is relaxing its guidance on wearing masks outdoors for people who are fully vaccinated, California employers should not relax their standards yet, according to employment law attorneys.
At the federal level, the CDC and Occupational Safety and Health Administration are still recommending that workers continue to wear masks. Employers in the Golden State also should be looking to the California Division of Occupational Safety and Health—known as Cal/OSHA—when developing their workplace safety standards related to the COVID-19 pandemic. With regard to masks, California's rules require people to be masked if they are in a public or private space with people from outside their household, regardless of whether they are interacting inside or outside.
Even those working outdoors, such as construction workers, should remain masked for now, said Allison Scott, an attorney with Dykema in Los Angeles.
California officials plan to lift most COVID-19 business restrictions and reopen the economy on June 15. If vaccination rates continue to rise and cases and hospitalizations remain low, the state will eliminate use of its current four-tier safety system—which sets regional limits on activities based on COVID-19 rates.
Mask mandates, however, will remain in effect, according to the governor's office. Here's what California employers need to know as they continue to monitor guidelines and mandates.
Providing a Safe Workplace
Attorneys agree that employers should approach protecting their employees and customers from COVID-19 as they would other workplace safety issues.
Here, the hazard involves a communicable disease, rather than wet floors or dangerous equipment. "We need to protect employees from hazards of all kinds, and in this case that means close contact with someone who is unmasked," said Melissa Peters, an attorney with Littler in Walnut Creek, Calif.
Arlene Yang, an attorney with Meyers Nave in San Diego, noted that virus variants are circulating, and that people can still get COVID-19 after they have been vaccinated.
Cal/OSHA emergency standards are still in place, and there is no vaccine caveat, Scott explained.
"Employers have an affirmative obligation to provide a workplace that is safe for all employees. And that means following the guidance of Cal/OSHA and county public health agencies," she said. "Cal/OSHA made it clear last November that masks are required in the workplace. They may eventually change those standards, but so far, they haven't. Masks are required, even if you are vaccinated."
Guidelines and mandates may change, so employers must continue to monitor for state and local orders revising mask requirements.
Maintaining Consistent Practices
"We understand that everyone has lockdown fatigue. People are looking for any sort of reason to get rid of masks," Peters observed. "But it comes back to employer liability. As soon as you let standards slip, even a bit, you run the risk of an outbreak or a work-related exposure."
Not everyone is going to be vaccinated, she said. "You don't want to create different rules for different classes of employees, the vaccinated and the unvaccinated."
Masks need to fit snugly and cover the nose and mouth. Scott said employers would be wise to quickly correct workers who are not in compliance. "If an employee complains about a safety issue, such as some not complying with masking, they are then engaged in a protected activity." The last thing employers want is employees calling Cal/OSHA or other regulators to voice concerns.
"You have to engage in those uncomfortable conversations," Scott said. "We've seen an increase in lawsuits by employees who complain about COVID safety and whether there is proper protective equipment available."
Even with reopening, people's comfort levels will vary. "You want to make sure you don't have employees who feel their concerns won't be addressed, or fear that they will suffer negative actions for expressing them," she said.
Enforcing Policies
While there is some question as to whether employers are required to provide masks for employees, it makes sense for employers to provide disposable masks, gloves and plenty of sanitizer throughout the workplace as they encourage a culture of compliance.
If certain employees cannot wear a mask for health reasons or other legally protected reasons, employers should have a discussion to see if there is an alternative solution, such as telecommuting or wearing a face shield with a drape.
As far as engaging with mask violators, Yang said, employers should focus on education and proactive compliance. This may include having managers model proper behavior and posting signs in the workplace that highlight safety protocols and the correct way to wear a mask.
Workers who can wear masks but violate company policy should be treated as they would for violating any other safety protocol. "The most punitive route is that mask-wearing is a condition of employment, which means employees could be terminated, but most employers will not take that route," Yang said. Enforcing the policy equitably is the key to compliance.
"The pandemic isn't over," she noted. Anthony Fauci, director of the U.S. National Institute of Allergy and Infectious Diseases, said everyone should be cautious until U.S. COVID-19 rates drop to 10,000 cases a day, but the CDC is currently reporting an average of more than 40,000 new cases a day.
Susan Kostal is a freelance writer and editor in San Francisco.
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