As follow-up to the California Department of Public Health’s new guidance issued on July 28, 2021, seven Bay Area counties including Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara, Sonoma and the City of Berkeley all issued separate orders to mandate masks indoors.  The orders require all individuals, regardless of vaccination status, to wear face coverings when indoors in public settings.  The orders became effective August 3. 

These orders come on the heels of similar orders for the counties of Los Angeles, Yolo, and Sacramento, all of which have issued mask mandates for all individuals, regardless of vaccination status. The orders state that the Delta variant strain of COVID-19 is highly transmissible, especially in indoor settings. While the risk of infection is highest among unvaccinated individuals, there has been an increase in “breakthrough” infections, i.e., COVID-19 infections in individuals who are fully vaccinated. Therefore, everyone, including people who are fully vaccinated, must wear masks in indoor public settings and must follow face-covering requirements, unless they fall within one of these exceptions:

1. Persons working alone in a closed office or room;
2. Persons actively eating and/or drinking;
3. Persons swimming or showering in a fitness facility;
4. Persons who are obtaining a medical or cosmetic service involving the head or face for which temporary removal of the face covering is necessary to performing the service;
5. Persons exempted from use of face coverings under the CDPH guidance (e.g., to communicate with someone who is hearing impaired or where the face covering poses a safety or medical risk).

Some county orders provide additional exceptions. For example, San Francisco’s order provides an exception for indoor recreational sports and religious gatherings where people can be physically distant, while Berkeley’s provides an exception for performers at live indoor events. 

The orders also require businesses to post signage at all entry points reminding employees and patrons of masking requirements as well as COVID-19 best practices to reduce transmission.

Many of the orders also specifically mention that businesses must follow Cal/OSHA rules, regulations, and other laws, including requiring employees to wear well-fitted masks or respirators, providing supplemental pay leave, and ensuring employees stay home when they have symptoms associated with COVID-19.  The orders also encourage all non-high-risk setting employers to mandate vaccinations and move operations and activities outdoors, if feasible. 

What is a Public Indoor Setting?

Many employers are confused about what is an indoor public setting and whether it applies to businesses.  A majority of the counties have separately addressed this issue by providing specific guidance stating that the face covering mandate applies to businesses.  For instance, San Francisco’s and Sonoma County’s guidance both reference that their orders apply to businesses and that they temporarily supersede less-stringent requirements in Cal/OSHA’s Emergency COVID-19 Prevention Regulation (the “ETS”).  Other county orders clarify that public settings include business offices, workplaces, retail stores, restaurants, theaters, family entertainment centers, meeting rooms, conference rooms, and/or state and local government facilities.  Therefore, an indoor public setting is not limited only to locations that are open to the public. If employers are not sure whether their business has a public indoor setting, they should review the order and/or contact counsel.

Governor Newsom’s Order Mandating Vaccinations or Testing for High-Risk Settings

Governor Newsom announced last week he would issue an executive order regarding vaccinations and/or testing for high-risk settings.  The governor’s order has not yet been released.  San Francisco’s order incorporates guidance that is substantially similar to the information from Governor Newsom’s press conference last week.  The San Francisco order states that no later than September 15, 2021, businesses and governmental entities with personnel in high-risk settings (e.g., general acute care hospitals, skilled nursing facilities, intermediate care facilities, residential care facilities for the elderly, homeless shelters, and jails) should ascertain vaccination status of personnel that work routinely onsite, require vaccinations for all who can be vaccinated, and require unvaccinated exempt personnel to get tested for COVID-19 at least once a week. Additionally, unvaccinated personnel in high-risk settings must wear a face covering at all times, and the high-risk setting must provide such personnel with a respirator upon request. The high-risk setting must also strongly encourage unvaccinated personnel to wear the respirator at all times when working with patients, residents, clients, or incarcerated people.    

What Does This Mean for California Employers?

County health officers and Cal/OSHA inspectors will now enforce face coverings in the workplace, even if all individuals at a workplace are fully vaccinated.  Employers that revised their COVID-19 Prevention Plans to eliminate masking for fully vaccinated employees and stopped enforcing the use of masks for vaccinated employees should revise those plans and require masking for everyone in the workplace. Additionally, employers and/or those responsible for the indoor public settings should provide face coverings at no cost to individuals required to wear them.