The CDPH Issues New Guidance on the Use of Masks and Cal/OSHA Reverses Position Yet Again on Revisions to the Emergency Temporary Standards

06.10.2021

Follow the bouncing ball….

On June 9, 2021, the California Department of Public Health (“CDPH”) issued new “Guidance for the Use of Masks” which will become effective June 15, 2021.  Unfortunately, the new CDPH guidance was inconsistent with the revisions to the Emergency Temporary Standards (“ETS”) which Cal/OSHA approved on June 3, 2021. If you are confused you are in good company. 

What happened yesterday?

In anticipation of Governor Newsom’s directive to Open California, the CDPH issued new guidance regarding the use of masks to take into account the effect of vaccinations.  Vaccinated individuals do not need to wear masks except in certain locations and unvaccinated individuals only need to wear masks in certain indoor public settings and businesses.  The Problem:  the new CDPH guidance conflicts with the revisions to the ETS adopted by Cal/OSHA on June 3, 2021. The CDPH has one set of rules for masks and Cal/OSHA has a different set of rules. 

What rules apply to whom?  When do you need to wear a mask?  Who has to wear a mask?

In a very unusual move, Cal/OSHA held an emergency meeting on June 9, 2021 where the board members voted unanimously to rescind the June 3, 2021 revisions to the ETS.

What does it mean?

The bottom line is there is no change to the ETS.  The ETS which was passed in November 2020 is still in effect.  The ETS is a regulation which employers in California must comply with or risk receiving citations from Cal/OSHA.  Cal/OSHA is scheduled to meet again on June 17, 2021 to address revisions to the ETS yet again.  If Cal/OSHA approves changes to the ETS on June 17, 2021, these changes will not be effective until at least June 28, 2021.

The CDPH guidance is for the general public while Cal/OSHA regulations only apply in the workplace.  The following is a summary of the new guidance.

Guidance for individuals

Masks are not required for fully vaccinated individuals, except in the following settings where masks are required for everyone, regardless of vaccination status:

• 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)
• Indoors in K-12 schools, childcare and other youth settings.
  • Note: This may change as updated K-12 schools guidance is forthcoming, pending updates for K-12 operational guidance from the CDC.
• Healthcare settings (including long term care facilities)
• State and local correctional facilities and detention centers
• Homeless shelters, emergency shelters and cooling centers

Masks are required for unvaccinated individuals in indoor public settings and businesses (examples: retail, restaurants, theaters, family entertainment centers, meetings, state and local government offices serving the public)

Guidance for Business, Venue Operators or Hosts

In settings where masks are required only for unvaccinated individuals, businesses, venue operators or hosts may choose to:

• Provide information to all patrons, guests and attendees regarding vaccination requirements and allow vaccinated individuals to self-attest that they are in compliance prior to entry.
• Implement vaccine verification to determine whether individuals are required to wear a mask.
• Require all patrons to wear masks.

It is important to note that no person can be prevented from wearing a mask as a condition of participation in an activity or entry into a business.

For additional information, individuals should refer to CDC Recommendations for Safer Activities (and see CDPH Masking Guidance Frequently Asked Questions for more information). 

These are confusing times as we receive directives from a multitude of regulatory agencies.  We will continue to keep you updated with the latest changes.  Please contact your AALRR attorney if you have questions or need further assistance.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. 

© 2021 Atkinson, Andelson, Loya, Ruud & Romo