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To Mask Or Not To Mask? California Employers Receive Cal/OSHA’s Answers to This and Other Important COVID-19 Workplace Safety Questions

By Procopio Partner Marie Burke Kenny

Fully vaccinated employees in California do not have to wear a face covering (mask) indoors, thanks to revised emergency temporary standards (ETS) issued by Cal/OSHA on June 17, 2021. The ETS took effect immediately when Governor Gavin Newsom signed an executive order waiving the normal ten-day review process. For those employers covered by the ETS* who have been waiting for guidance from Cal/OSHA, here are some answers to your questions:

  • Question: Do “fully vaccinated” employees have to wear masks while working indoors?
  • Answer: No. Fully vaccinated employees can work indoors without masks with few exceptions. Vaccinated employees must still wear masks in those indoor settings where the California Department of Public Health (CDPH) requires masks, including public transit, K-12 educational facilities, health care and long-term care settings, correctional and detention facilities, and shelters.
  • Question: What does "fully vaccinated" mean?
  • Answer: “Fully vaccinated” means the employer has documented that the person received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine that are FDA or WHO approved.
  • Question: What vaccine documentation is an employer required to maintain?
  • Answer: An employer can elect one of the following documentation options: (1) Maintain a copy of the employee’s proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status). (2) • Inspect the employee’s proof of vaccination and maintain a record of the employees who presented proof, but not a copy of the vaccine record itself. (3) Maintain a record of employees who self-attest to vaccination status.
  • Question: Are there medical privacy issues implicated with vaccine documentation?
  • Answer: Yes. Businesses that are subject to the California Consumer Privacy Act (CCPA) should provide a collection notice (before collection begins) of the vaccine information collection, the purpose for collection, and the categories of third parties the information is shared with should also be included in an updated privacy policy. Vaccination information cannot be collected if the business does not provide notice to the employee. Employee vaccination records will be usually be covered by HIPAA and must be kept in a folder that is separate from their personnel file and secure.
  • Question: Can an employee decline to state vaccination status?
  • Answer: Yes. An employee has the right to decline to state if the employee is vaccinated or not.
  • Question: Can an employer discipline an employee who declines to state vaccination status?
  • Answer: No. The employer must treat the employee as unvaccinated and must not take disciplinary or discriminatory action against the employee.
  • Question: Are unvaccinated employees required to wear masks while working indoors?
  • Answer: Yes. Unvaccinated employees are required to wear face coverings while working with others indoors or in a vehicle.
  • Question: Can an employer discipline a “fully vaccinated” employee for wearing a face mask?
  • Answer: No. Employers may not retaliate against employees for wearing face masks.
  • Question: Are employers required to provide respirators (N95) to all unvaccinated employees?
  • Answer: No. An employer must provide respirators to any unvaccinated employee who works with others indoors or in a vehicle and who requests a respirator. In addition, if there is a major outbreak, an employer must provide respirators to any employees in the exposed group for voluntary use.
  • Question: Do employers need to provide training regarding use of respirators?
  • Answer: Yes. Employers must provide training on how to properly wear respirators and how to perform a seal check according to the manufacturer’s instructions each time a respirator is worn, and the fact that facial hair interferes with a seal.
  • Question: What other training must employers provide under the ETS?
  • Answer: Employers must provide training to employees regarding the following: (1) The nature of COVID-19 as an airborne disease and the fact that N95s and more protective respirators protect the users from airborne disease while face coverings primarily protect people around the user. (2) Information on the employer’s COVID-19 policies; how to access COVID-19 testing and vaccination; and the fact that vaccination is effective at preventing COVID-19, protecting against both transmission and serious illness or death. (3) The conditions under which face coverings must be worn at the workplace and that face coverings are additionally recommended outdoors for people who are not fully vaccinated if six feet of distance between people cannot be maintained.
  • Question: Are employers required to enforce physical distancing for employees?
  • Answer: Irrespective of vaccination status, employers are not required to implement physical distancing or barrier requirements. However, employers can elect to implement physical distancing and barriers. Employers have an ongoing duty to assess workplace hazards and implement controls, including physical distancing, to prevent disease transmission. Employers must also consider physical distancing requirements during an outbreak and implement physical distancing and barriers during a major outbreak.

More Questions?  Cal/OSHA has published some helpful FAQs to guide employers. 

What to do?  California employers governed by the ETS should act quickly to update their written COVID-19 Prevention Programs and thoroughly train employees regarding the new issues identified in the ETS.  Employers should also work closely with employment counsel to discuss options for complying with the new standard. Businesses covered by the CCPA are advised to consult with privacy counsel regarding vaccine information collection and storage. 

If you need further information, please contact Marie Burke Kenny or any other member of our Labor and Employment team.

Footnote: The ETS applies to all California employees and places of employment except for: (1) work locations with one employee who does not have contact with other people, (2) employees working from home, (3) businesses such as hospitals and skilled nursing facilities who are already covered by Cal/OSHA’s Aerosol Transmissible Diseases standard and (4) employees teleworking from a location of the employee’s choice, which is not under the control of the employer.

Marie Burke Kenny is the Leader of Procopio's Labor and Employment practice and a member of its Management Committee. She represents employers in wage and hour class actions and litigation involving wrongful termination, discrimination, harassment, retaliation and unfair competition claims. Marie also has extensive experience counseling employers regarding all aspects of the employment relationship, including performance management, termination, contracts, workplace investigations, medical issues, leaves of absence, wage and hour audits, compensation review, workplace training and employment policies and practices. She works with employers to develop strategies to prevent employment claims and create effective defenses to litigation.