California Re-Opens on June 15: To Mask, Or Not To Mask?
Masks? No masks? What about mandatory vaccinations? Social distancing? How many workers can travel together in a work vehicle?
When Gov. Newsom declares the state reopened on June 15, how exactly are employers suppose to answer these questions for their workers? And what can’t employers ask about or mandate?
The answer is, “It’s complicated.” And it’s probably going to change in the weeks to come.
On one hand, the California Department of Public Health has announced policies that align with federal guidelines. Masks are not required for fully vaccinated individuals (with exceptions for schools, healthcare settings and public transit).
Additionally, masks are required for unvaccinated individuals in indoor public settings.
Employers may allow vaccinated individuals to self-attest that they are in compliance, or may implement vaccine verification to determine whether individuals are required to wear a mask.
The Cal/OSHA Standards Board, meanwhile, earlier this month imposed standards that were stricter than the guidelines imposed by the state and federal government, but less onerous than the Cal/OSHA COVID-19 Emergency Temporary Standards they replaced. On the evening of June 9, however, the board voted to repeal the standards they imposed a week earlier. They’re scheduled to re-visit the topic on June 17. In the meantime, the original more onerous guidelines are in effect. Those guidelines mandate that all employees, even those who are fully vaccinated, must wear masks and physically distance.
For the next 18 days, it appears that the best next step for landscape contractors is to continue to follow Cal/OSHA’s COVID-19 Emergency Temporary Standards. Those guidelines trump the California Department of Public Health’s guidance.
The regulations require that employers implement a site-specific written COVID-19 prevention program to address COVID-19 health hazards, correct unsafe or unhealthy conditions and provide face coverings. When there are multiple COVID-19 infections or outbreaks at the worksite, employers must provide COVID-19 testing and notify public health departments. The regulations also require accurate recordkeeping and reporting of COVID-19 cases.
What Will Gov. Newsom Do?
Ultimately, the buck stops with the governor, whose power to issue executive orders allows him to determine who is required to wear a mask and if or how employers may force workers to confirm their vaccination status.
During a “Vax for the Win” prize drawing on June 4, Gov. Newsom did not come out and say that he was going to overrule the Cal/OSHA ruling.
“This disease has not been extinguished. It’s not vanished. It’s not taking the summer months off,” Newsom said.
During the June 3 Cal/OSHA meeting, labor representatives supported this stance.
In a statement to The San Jose Mercury News following the Cal/OSHA meeting, a spokesperson for the governor said “We appreciate the board’s actions to maintain worker safety and are hopeful the board will further revise its guidance to reflect the latest science while continuing to protect workers and balancing realistic and enforceable requirements for employers.”
The business community, meanwhile, called on Gov. Newsom to immediately overrule the guidelines.
“An executive order is the only rational way to go now,” Lynn Mohrfeld, the president and CEO of the California Hotel and Lodging Association, said in an opinion piece in The Sacramento Bee. “By issuing it, Newsom would bring desperately needed clarity to both what an employee’s responsibility is and what the employer’s responsibility is.”
During the June 3 Cal/OSHA hearing, business representatives criticized the new rules for going against guidance provided by the California Department of Public Health and the Centers for Disease Control and Prevention.
They also warned that the rules would result in workplace vigilantism, as vaccinated and unvaccinated employees face off.
“If there’s anyone unvaccinated in a room, everyone’s got to wear a mask,” labor law attorney Wendy Lazerson told the Cal/OSHA board. “That’s going to cause some unhappy people at work.”
What the Cal/OSHA Rules Says Employers Must Do
- Enforce indoor mask mandates and social distancing requirements.
- Provide testing for unvaccinated employees who have symptoms of COVID-19. Testing is to be provided at no cost while the employee is “on the clock.”
- Pay workers who self-isolate because of their exposure to COVID-19 at workplaces.
Updated 3 p.m., June 10, 2021
For the time being, don’t panic – and keep an eye out for updates from CLCA on this extremely fluid situation.
Plan on attending a special CLCA Member Advantage webinar on Tuesday, June 22, 3-4 p.m., for an update on COVID and the reopening of California businesses. Registration information coming soon.
Recognize that local cities and counties may enforce regulations that are stricter than statewide standards.
Keep an eye out for details about vaccination requirements. How will employees prove vaccination? Will workplaces need to have workers’ vaccine records on file to comply with Cal/OSHA regulations? What happens if an employee claims to be vaccinated but can’t provide supporting documentation? Cal/OSHA is working on answers.
Although it may appear that official enforcement is sporadic, the possibility of public outcry or employee legal action should not be ignored.
Review HR guidance regarding vaccinations and reasonable accommodations before taking action. See clca.org/covid.
Consult CLCA’s HR Hotline if you have specific questions.
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