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California Weighs Dropping Mask Rule for Most Vaccinated Workers

June 16, 2021, 6:46 PM

California will consider state rule changes Thursday that could lift mask requirements by the end of the week for most vaccinated workers and ease mandates for those who haven’t received the shot.

The California Occupational Safety and Health Standards Board is set to consider the changes recommended by the California Division of Occupational Safety and Health, commonly known as Cal/OSHA. If accepted, the revisions to the state’s Covid-19 emergency workplace safety standard would follow Covid-19 public health policies that took effect Tuesday lifting most restrictions on businesses and public gatherings.

Gov. Gavin Newsom (D) said June 14 that if the board approves the revisions, he’ll quickly issue an executive order enacting the updates and not wait for the state Office of Administrative Law to complete a review that can take up to 10 days.

That means the overhaul of California’s emergency rule protecting workers from Covid-19 infection could be enacted by June 18, giving employers a new set of responsibilities, such as tracking vaccinations among staff.

The biggest rule change would end the requirement that fully vaccinated workers wear face masks in most situations. Unvaccinated workers would be allowed to go maskless outdoors but still be required to wear face coverings indoors.

The changes would apply to most workers in California, except for health-care workers, who are covered by a separate airborne disease rule that isn’t undergoing changes.

New Employer Requirements

The proposed changes acknowledge the improvements brought on by increasing vaccination rates among workers and the public, said Wendy Lazerson, co-chair of Sidley Austin’s labor and employment practice group, in Palo Alto, Calif.

“There is a real desire to get back to normal and normalize the workplace so that people want to be back to work,” Lazerson said.

The current standard took effect Nov. 30, before the widespread rollout of vaccines.

The revisions mark Cal/OSHA’s third attempt in June to get changes approved by the standards board. The board considered different versions on June 3 and June 9, but neither earned final approval.

Employers at both sessions complained the earlier proposed changes were out of step with new masking and social distancing guidance for fully vaccinated people issued by the California Department of Public Health and the federal Centers for Disease Control and Prevention—as well as Newsom’s promise to lift most business restrictions on June 15.

The proposed mask rules would bring new requirements for employers, said Alka Ramchandani-Raj, a partner with Littler Mendelson in Walnut Creek, Calif.

Employers would have to offer unvaccinated workers N95 or similar respirators at no cost. An unvaccinated worker who chose not to wear a respirator while indoors would still have to wear a less-protective face mask, the same as now required.

Differentiating between fully vaccinated and unvaccinated workers would require employers to track their staffs’ vaccination status, Ramchandani-Raj said.

Tracking Vaccinations

In guidance issued June 15, Cal/OSHA said acceptable vaccination proof would include workers providing copies of their vaccination cards. Also, workers could “self-attest” that they were fully vaccinated.

Whatever evidence an employer accepts, the employer needs to keep a written record and expect Cal/OSHA inspectors to ask for it if there is an inspection, Ramchandani-Raj said.

Kennell Sambour, an associate at Littler’s Los Angeles office, said employers could be confused by the proposed standard’s compliance options.

The old standard set consistent mandates regardless of vaccination status, Sambour said. The proposed standard sets different requirements for fully vaccinated and unvaccinated workers, and stricter mandates if there is a workplace Covid-19 outbreak.

For example, if everyone working indoors is fully vaccinated or wearing a mask, social distancing and physical partitions aren’t required. However, separating workers by at least six feet or using partitions are options employers must consider if at least three workers become infected within two weeks, and it would be mandatory if there are 20 or more cases within 30 days.

The proposed rule also sets new education mandates, said Lazerson, of Sidley Austin.

Employers would have to advise workers that vaccines are effective and about how to get vaccinated, provide training on the correct use of masks and respirators, and inform workers of their right to request a respirator.

Lazerson said she is optimistic the standards board will approve the revisions and end what had been a confusing month for employers trying to sort through different state policies and proposed changes.

“We certainly have been getting calls from clients with whiplash because it’s just been very difficult for people to keep up,” she said.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Travis Tritten at ttritten@bgov.com; John Lauinger at jlauinger@bloomberglaw.com

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