On February 28, 2022, the California Department of Public Health (“CDPH”) updated its guidance concerning the use of face coverings to further relax those requirements.

While the updated CDPH guidance continues to require the use of face covering in certain high-risk settings,[1] the guidance removes those requirements in most other circumstances:

• Effective March 1, 2022, the CDPH will no longer require that unvaccinated individuals wear a face covering in indoor public settings; and
• After March 11, the CDPH will no longer require face covering in K-12 and childcare settings.

In order to ensure that the updated CDPH guidance also applies to employees in workplaces subject to the Cal/OSHA Emergency Temporary Standards (“ETS”), on February 28, 2022, Governor Newsom issued Executive Order N-5-22. That Executive Order immediately suspends the regulatory obligation under the Cal/OSHA ETS that otherwise would have required that employers ensure that unvaccinated employees wear face coverings when indoors and in vehicles.

In pertinent part, the Executive Order states:

1. California Code of Regulations, title 8, section 3205(c)(6)(A)[2] is suspended.
2. The ETS, adopted on December 16, 2021, which has a 90 day period specified in Government Code section 11346.1(h), is extended by 21 days.

As a result of the updated CDPH guidance and the Executive Order, employers no longer need to require that employees wear face coverings. If an employer elects to exercise its authority and allows employees to go without wearing face coverings, it should also update its COVID-19 Prevention Program (“CPP) and inform employees of the change or advise its employees that the relevant CPP provisions no longer apply.

For employers with represented workforces, LCW recommends the following steps to effectuate this change in policy:

1. Provide notice to its employee organizations and an opportunity to bargain the change in the employer’s face covering requirements;
2. Once the employer and its employee organizations agree on the revised face coverings requirements, either modify the relevant section of their COVID-19 Prevention Program (“CPP) or inform employees that that section is no longer operative, but that it has been supplanted by revised requirements, which should be provided to the employer’s employees.

These employers should consider which option is preferable given the Cal/OSHA ETS, with the extension provided under the Executive Order, is set to expire on April 6, 2022.

In the meantime, employers should continue to be mindful of any applicable local health orders that may prescribe the continued use of face coverings by some or all employees.[3]

LCW attorneys are closely monitoring developments on this subject and will continue to provide updates as necessary.

[1] These settings now include public transit, in emergency shelters, healthcare settings, correctional facilities, homeless shelters, long-term care settings, and senior care facilities.

[2] This provision required: “For all employees who are not fully vaccinated, employers shall provide face coverings and ensure they are worn when indoors or in vehicles.” (8 CCR 3205(c)(6)(A), emphasis added.)

[3] See 8 CCR 3205(c)(9)(B)