June 11, 2021

To Mask Or Not To Mask? Cal/OSHA Still Sorting It Out

Employers Advised To Maintain Current Policies Pending June 17 Meeting

In yet another twist in the controversy regarding whether fully vaccinated employees in California will be required to wear masks at work, after an emergency meeting on Wednesday night, Cal/OSHA’s Board scrapped proposed revisions to its Emergency Temporary Standards (ETS) initially adopted on June 3.

The Board’s withdrawal of the revisions—which contained onerous, highly criticized masking rules that would have required fully vaccinated employees to wear masks indoors any time they were in the presence of an unvaccinated individual—sent Cal/OSHA back to the drawing board, with clear direction from the Board to align California workplace safety requirements more closely with the liberal masking guidelines that will become effective for the general population statewide beginning June 15, 2021.

The Board’s flip-flopping has created widespread confusion for California employers who have been closely monitoring Cal/OSHA’s directive as they prepare for the state’s highly anticipated reopening next week.

Here is what employers need to know to ensure they remain in compliance with current Cal/OSHA regulations:

WHERE THINGS CURRENTLY STAND:
For now, there are no new changes to the ETS currently in place. Cal/OSHA is expected to make further revisions to the masking provisions of the new ETS that it will present to the Board on June 17, 2021. If approved, this new ETS would likely go into effect by June 28, 2021, once reviewed by the state Office of Administrative Law.

WHAT EMPLOYERS SHOULD DO NOW:
Since further revisions to the ETS will not become effective before June 15, California employers need to continue to adhere to the ETS implemented in November 2020 (as clarified and/or modified by Cal/OSHA’s FAQs) in the meantime. Although California’s relaxed masking guidelines—which apply to the general public—will kick in on June 15, employers should hold off on updating their masking policies and relaxing their practices and await final word from Cal/OSHA.

STAY TUNED!
We will continue to provide periodic updates on this issue as more information from Cal/OSHA becomes available. Further proposed revisions to the ETS are expected to be published by June 17, with a proposed effective date of June 28.

For the time being, employers should hold on tight for another potentially bumpy ride.

For more information on this topic, you can reach out to:
Kirstin Muller, kmuller@hkemploymentlaw.com, (310) 255-1811
Netta Rotstein, nrotstein@hkemploymentlaw.com, (310) 255-1807
Michelle Freeman, mfreeman@hkemploymentlaw.com, (415) 835-9003