After reviewing the updated CDC Interim Public Health Recommendations for Fully Vaccinated People and in response to the recent surge in COVID-19 rates and hospitalizations, particularly in areas with lower vaccination rates, the California Department of Public Health (CDPH) on July 28 revised its Guidance for the Use of Face Coverings (Guidance) to recommend that all persons, regardless of vaccination status, wear face masks in indoor public settings across California.
The Guidance also advises that “fully vaccinated people might choose to wear a mask in indoor nonpublic settings, particularly if they are immunocompromised or at increased risk for severe disease from COVID-19, or if they have someone in their household who is immunocompromised, at increased risk of severe disease, not fully vaccinated, or not yet eligible for vaccination.”
Regarding workplaces, the Guidance reiterates that employers are subject to the Cal/OSHA COVID-19 Emergency Temporary Standards (ETS) or in some workplaces the Cal/OSHA Aerosol Transmissible Diseases (ATD) Standard and should consult those regulations for additional applicable requirements. The Cal/OSHA ETS’s Prevention Provisions provide that (a) employees who are not fully vaccinated must wear face coverings when indoors or in a vehicle, and (b) employers must provide face coverings and “ensure they are worn by employees when required by orders from the CDPH.”
Because the July 28 CDPH Guidance is not an order, it does not change the face covering requirements in workplace settings in California. Face coverings are mandated in workplace settings, however, in some local jurisdictions in California. Most prominently, the Los Angeles County Health Officer Order requires face masks for all persons indoors, including in private office settings. Employers that do not already require face masks for all persons indoors regardless of vaccination status should determine quickly whether to revise policies to do so. Employers should review the updated CDC Guidance, the CDPH Guidance, COVID-19 transmission rates in the locations in which employers are operating, and closely monitor state and local health officer directives in those locations as new recommendations and orders will be posted frequently in the coming days and weeks.
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If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Daryl S. Landy
Alicia J. Farquhar