A breath of fresh air was drawn by many California businesses when state officials announced a plan to align with federal CDC guidelines and fully reopen the economy on June 15. On June 3, as businesses were preparing for this, Cal/OSHA initially passed a vote to revise its workplace safety guidelines that had been in effect since November 2020.
These revisions would have eased some restrictions on social distancing and mask mandates for fully-vaccinated employees, and would have provided employers with a much-needed update and clarity on safety protocols related to COVID-19 transmission and prevention in the workplace.
However, the revisions drew significant criticism for being out-of-step with CDC guidance and on June 9, Cal/OSHA reversed its own vote before it was set to take effect on June 15. This was a step backwards in the reopening process, with workplace safety guidelines reverted to the more restrictive safety measures that have been in place throughout the majority of the pandemic.
Now, on June 15 employees will be held to more restrictive standard than members of the general public when it comes to facial coverings and social distancing guidelines at work. Cal/OSHA is expected to revisit this issue during a meeting on June 17, and many businesses are hopeful that the Board will pass a new vote to relax workplace restrictions effective June 28.
Meanwhile, on June 9 the California Department of Public Health (CDPH) announced its own guidance on facial coverings for the general public. Businesses will want to look to these new guidelines when developing policies applicable to customers on June 15.
CDPH is now closer in alignment with the CDC’s guidance that masks are no longer required for fully vaccinated individuals in most settings. The CDPH will continue to require masks in public transit, childcare settings, healthcare centers, prisons and homeless shelters. The CDPH also continues to recommend that unvaccinated individuals should wear a mask in indoor public settings and businesses (e.g., retail, restaurants, theaters and government offices).
The CDPH guidance also outlines three options for businesses allowing fully vaccinated individuals to enter without a mask beginning June 15: (1) self-attest prior to entry; (2) implement a vaccine verification process; or (3) require all patrons to wear a mask.
With the CDPH guidance now in place, Cal/OSHA should have a clearer path to issuing new and less restrictive guidance for employees in the workplace when it meets on June 17. In the meantime, businesses should keep their existing policies in effect for employees.
If and when Cal/OSHA gives approval for vaccinated employees to drop the mask at work, there are several issues that employers need to consider when it comes to verifying vaccination status of employees.
Businesses can take some peace of mind in recent DFEH and EEOC guidance which allows employers to request proof of vaccination from employers without concern that this might be considered a disability-related inquiry. However, the issue of disparate treatment in the workplace related to mask policies will soon be ripe for litigation.
The EEOC has cautioned employers on the disparate impact that vaccine requirements could have on employees in certain demographic groups that face greater barriers to receiving a COVID-19 vaccine. Policies which have the effect of incentivizing, coercing or disparaging employees to get vaccinated will likely to lead to claims of harassment, retaliation or discrimination in the workplace.
There is no easy answer for businesses who are attempting to balance customer expectations with employee relations, safety and liability concerns when making decisions about reopening on June 15 and beyond. The shifting and reversing of requirements by various California government agencies throughout this pandemic has forced many businesses to shut down on a temporary or permanent basis.
California’s workplace safety administration needs to understand that these businesses have suffered enough and are looking for a clear path on how to stay safe and competitive as the economy reopens.
Ryan Quadrel is an Associate Attorney with SBEMP Attorneys practicing primarily in labor & employment law. He can be reached at (760) 322-2275 x251 or [email protected].
Nothing in the above article is intended to constitute legal advice. Please seek legal counsel to suit your specific circumstances for any legal advice.