California is the latest state to back away from extensive facemask requirements for workplaces, deciding to scale back its Emergency Temporary Standards (ETS) that had previously gone into effect for employers on Jan. 1, 2021.
The central change in the COVID-19 standards allows that workers no longer will be required to wear facemasks if they have been vaccinated, but they will need to continue wearing them if they cannot show that they have been vaccinated.
The state’s action follows issuance of a national ETS by the federal Occupational Safety and Health Administration (OSHA). After months of behind-the-scenes and public discussion about proposed rules that had been ordered by President Biden on his first day in office, the federal ETS was pretty much confined to the hospital and healthcare industry.
The limited nature of the standards left unhappy some of the labor unions who had asked OSHA to produce the ETS a year earlier, only to be rebuffed by the Trump Administration Department of Labor and disappointed by a subsequent court rejection of their arguments. Under Biden, they thought they would finally get what they wanted.
Biden Administration officials backed away from more extensive ETS requirements because of the waning of the pandemic and widespread vaccinations had eliminated much of the “emergency” circumstances that would be needed to legally justify adopting these rules in the absence of the usual notice and comment period and other time-consuming requirements demanded by federal law for imposing new agency regulations.
Confusion over rules development was not confined to the federal level. It also was evident in California, which maintains its own workplace safety agency called Cal/OSHA. Those state bureaucrats have been doing their own version of a one-step-forward, two-steps-back dance in recent weeks, and came up with a result that fails to make everyone happy, but which advances the return to normalcy.
Following the Centers for Disease Control and Prevention (CDC) loosening of its mask and social distancing guidelines, most jurisdictions across the country have chosen to leave it to individual employers and owners of businesses that deal with the public to decide whether they would continue to apply mask and distancing rules.
The California Occupational Safety and Health Standards Board—Cal/OSHA’s supervisory body—initially proposed keeping unchanged its workplace requirements, which were stricter than the CDC’s. This generated a heated response from the public and business owners, which caused the agency to backtrack and take another look at its ETS policy.
New Standards Adopted
After all the controversy and back and forth positioning on the matter, the board voted 5-1 on June 17 that employees who have been vaccinated no longer need to wear facemasks in the workplace. Employers can require employees to supply proof of vaccination because employers must verify and document workers’ vaccination status.
Among some of the other changes, employers must make COVID-19 testing available to unvaccinated employees who have symptoms, as well as vaccinated workers who have symptoms after close contact with a COVID-19 case.
In addition, workers must be allowed to wear a face-covering if they choose without fear of retaliation from employers, and employers must provide workers who are not fully vaccinated with respirators for voluntary use, upon request and at no cost. The new standards also eliminate the requirements for physical distancing and the use of solid, cleanable partitions like the plastic barriers that separate customers and cashiers.
In California, it usually takes a minimum of 10 days for the board’s standards to go into effect because they are subject to additional review, as they are subject to review by another state agency, but Gov. Gavin Newsom (D)—who is in the midst of a bruising recall campaign battle—chose to sign an executive order making the changes effective immediately.
The California Chamber of Commerce said, “We are grateful for the clarifications made today by Cal/OSHA and the governor on key issues with regard to eliminating mask requirements for vaccinated employees in most settings, eliminating social distancing requirements, and providing a straightforward method for employers to verify vaccination status.”
If the business community and members of the public argued for removal of the state ETS, labor unions and one board member argued once again that in their view it was too soon to take this action.
In addition to public input calling for less restrictive standards, the board also was undoubtedly influenced by a letter from the California Department of Public Health (CDPH). Noting that more than two-thirds of adult Californians are now fully vaccinated, the state has a positivity rate below 1%, and COVID-19 case counts are low and stable.
As a result, CDPH announced that face coverings will no longer be required for fully vaccinated Californians in public settings, except in the settings where the CDC advises that all individuals should wear face coverings regardless of vaccination status. These include healthcare settings and long-term care facilities, public transit and sheltering operations.
CDPH also requires facemasks for all unvaccinated individuals in indoor public settings and businesses, except for when they are alone or are eating and drinking. Businesses may allow individuals entering their business to self-attest their vaccine status, implement vaccine verification measures, or require all patrons wear masks.
The state health department also affirmed that no person can be prevented from wearing a mask as a condition of participation in an activity or entry into a business. And, as we have seen elsewhere in the country, many people are choosing to continue to wear masks even where they are no longer required.