In Episode 127 of The Workplace podcast, CalChamber Executive Vice President and General Counsel Erika Frank, and employment law expert Matthew Roberts discuss the reinstatement of COVID-19 mask requirements across California.
Given the unpredictability of the COVID-19 pandemic, government guidance and mandates may be altered at any time. Information presented in this podcast is accurate as of August 5, 2021.
New Mask Requirements
With cases of COVID-19 spiking and the widespread emergence of the highly contagious Delta variant, public health officials across the state have begun reinstating mask mandates, regardless of whether people are vaccinated, Frank tells podcast listeners. About half of California counties have now reinstated mask policies that require everyone to wear a mask indoors, causing confusion among employers as there have been instances where the Centers for Disease Control and Prevention will say one thing and then the California Department of Public Health (CDPH) will say another and then local health departments will say another.
So, Frank asks Roberts, how can a business know when a mask mandate applies to them?
Roberts answers that employers should start by checking with their local government. What does the employer’s local public health department say?
The California Division of Occupational Safety and Health (Cal/OSHA) has rules for the entire state, but an employer’s local health department may have stricter rules in place. And if they do, he explains, then the employer has to follow the stricter rules first.
If an employer resides in a county that has not yet imposed a masking requirement, then it is at the employer’s discretion to establish a universal masking policy that doesn’t take vaccination status into consideration, Roberts says.
In fact, some employers have said that requiring everyone to wear a mask is easier to manage and prevents unvaccinated employees from feeling singled out, Frank adds.
Risk of Liability, Penalties
If an employer decides not to enforce their local health orders and not require their workers to mask up, they may incur penalties and risk litigation. Public health orders typically contain penalties, and in some cases, Cal/OSHA has the authority to shut down a business, Roberts says. Moreover, employees would be considered to be working in an unsafe work environment and would be able to file complaints or even refuse to come into work—as has happened throughout the pandemic.
“So, [there are] lots of angles from where claims can arise with regards to not following these mandates,” he points out.
If an employer has a mask policy in place and an employee refuses to abide by the policy, disciplinary action may be taken, Roberts explains. It is up to the employer to correct the behavior, so whether that correction means issuing warnings, final warnings or termination, it is important for employers to get everyone in compliance.
In closing the podcast, Frank reminds employers that even though Cal/OSHA uses a person’s vaccination status to determine whether they need to wear a mask, if an employer’s locality has issued an order requiring everyone to wear a mask, then the employer needs to follow their local orders.
Many counties are issuing new orders, and it’s important that employers stay up to date as fast as they can. Employers should check their local health department’s website or call the office directly. Employers shouldn’t rely solely on their news outlet to report updates, but should go directly to the source, Frank urges. Doing so will help you stay on track and in compliance.