California Department of Public Health Amends Face Covering Guidance — Schools Are Subject to a Broad Face Covering Mandate

06.20.2020

On June 19, 2020, the California Department of Public Health (CDPH) amended its “Guidance for the Use of Face Coverings” (“the Guidance”) to remove a confusing reference which suggested that persons in K-12 institutions (e.g. teachers, students, etc.) might be exempt from the general obligation to wear face coverings when “inside of, or in line to enter, any indoor public space.”

This update is focused solely on new requirements of the Guidance with respect to “indoor public space[s].” Our original Alert also addressed other aspects of the Guidance, including requirements specific to workers and persons in “outdoor public spaces,” as well as general exemptions applicable to all persons — these matters have not changed, and are not addressed in this update.

The Guidance Originally Implied Schools Were Exempt From The Requirement That All Persons Wear Face Coverings In “Indoor Public Space[s]”

As originally issued, the Guidance stated that face coverings were required for persons:

[i]nside of, or in line to enter, any indoor public space . . . unless exempted by state guidelines for specific public settings (e.g., school or childcare center).

This language, and particularly the reference to schools, implied the existence of state guidance exempting schools from mandatory use of face coverings in connection with “indoor public spaces.” However, there is no guidance clearly stating any such exemption.

The Amended Guidance Now Broadly Requires Face Coverings In “Indoor Public Space[s]” And Does Not Imply An Exemption For Schools

As amended, the Guidance broadly requires use of face coverings by all persons:

Inside of, or in line to enter, any indoor public space . . . unless exempted by state guidelines for specific public settings.

This language no longer implies that schools are exempt from mandatory use of face coverings in connection with “indoor public spaces.”

As amended, this language indicates that all persons (e.g. teachers, students, etc.) will be subject to a face covering mandate in “indoor public spaces,” a broad phrase which, while not precisely defined, seems to encompass school classrooms and other areas open to students.

There May Be Narrow Exemptions Applicable To Schools

The general requirement to wear face coverings in any ‘indoor public space” does not apply to persons “exempted by state guidelines for specific public settings.”

The state has issued guidelines discussing face coverings for K-12 institutions. That guidance consists of: (1) CDPH guidance issued on June 5; and (2) CDE guidance issued on June 8. That prior guidance does not contain a broad exemption applicable to face coverings, but does suggest use of face shields for teachers, and addresses limited circumstances where special considerations may apply, specifically including early-grade students who may struggle with wearing masks, or students with disabilities who refuse or are unable to wear masks. These “suggestions” may well be permissible as an “exemption” to the broad statement in the Guidance. K-12 institutions are strongly encouraged to consult with legal counsel regarding any potential exemption to the face covering mandate.

Planning for the Fall

Based on the amended Guidance, K-12 institutions are encouraged to plan for widespread use of face coverings in schools this fall. It is to be hoped that CDPH will issue further clarifications as the need arises.