Due to increased COVID-19 positivity and hospitalization rates stemming from the Delta variant, including a rising number of breakthrough cases, public health officers in seven Bay Area counties—Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara, and Sonoma— and the City of Berkeley all issued face covering orders on August 2, 2021. The orders became effective on August 3, 2021.
The orders follow on the heels of and reference recently updated Centers for Disease Control and Prevention (CDC) guidance and California Department of Public Health (CDPH) recommendations. Unlike the CDC guidance and CDPH recommendations, the Bay Area health officers’ orders require all people, regardless of vaccination status, to wear face coverings in indoor settings. The orders vary in their approach but tend to define indoor public settings to include those generally open to the public, such as restaurants, theaters, family entertainment centers, meeting rooms, and state and local government facilities where services are provided to the public. The orders generally also apply to private settings, such as business offices and other workplaces. The orders are not the first in California counties to require face masks for everyone indoors regardless of vaccination status. Los Angeles, Sacramento, and Yolo counties recently adopted similar orders.
Businesses subject to the orders must post conspicuous signage communicating the face covering requirements. In addition, businesses with indoor public settings are strongly encouraged to provide face coverings at no cost to individuals who do not have a face covering upon entry. The San Francisco order requires “well-fitted” face coverings as provided under federal and state law. Cal/OSHA imposes additional face covering requirements on employers.
The orders do not reinstitute social distancing requirements or capacity limitations. Santa Clara County, which throughout the pandemic has issued among the strictest orders, includes in its order a recommendation to avoid indoor dining:
For clarity, this Order does not prohibit any otherwise lawful activity but instead requires the use of face coverings indoors to the maximum extent possible. However, all persons are strongly discouraged from engaging in any activities that require removal of face coverings indoors (e.g., indoor dining), and instead encouraged to choose safer alternatives (e.g., outdoor dining). Even outdoors, individuals are recommended to use face coverings if they are in crowded areas.
People in the seven counties and Berkeley are not required to wear face coverings if they are:
Certain orders also exempt those providing religious services, performers at live events, and school students with a medical or behavioral exemption.
Particularly in light of the lack thus far of a statewide indoor face covering mandate in California, employers should closely monitor the applicable public health directives in the local jurisdictions in which they operate. Additional mandates and restrictions are likely if the Delta variant’s spread continues on its current trajectory. Employers also should consult their counsel and review their health and safety protocols and COVID-19 prevention plans to assess compliance with the rapidly changing state and local agency recommendations and requirements. Employers should immediately communicate any significant policy changes to their workforces.
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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:
Kathryn T. McGuigan
Orange County and Silicon Valley
Daryl S. Landy
Michael D. Schlemmer