California has issued new guidance for the use of face coverings that will take effect on June 15, 2021.  The guidance impacts retailers and coincides with news that approximately 46% of Californians are now fully vaccinated.  Although the new guidance, published by the California Department of Public Health (“CDPH”) will impact how retailers operate vis-à-vis the public patrons, it does not impact employer-employee obligations.  Those obligations are still governed by the Cal/OSHA COVID-19 Emergency Temporary Standards (ETS), and in some cases, the Cal/OSHA Aerosol Transmissible Diseases Standard.  You can find our blog about these standards here.

The CDPH Guidance affecting patrons will require masks for unvaccinated individuals “in indoor public settings and businesses (examples: retail, restaurants, theaters, family entertainment centers, meetings, state and local government offices serving the public).”  In these types of settings, businesses have three options to choose from:

  • Provide information to all patrons, guests and attendees regarding vaccination requirements and allow vaccinated individuals to self-attest that they are in compliance prior to entry.
  • Implement vaccine verification to determine whether individuals are required to wear a mask.
  • Require all patrons to wear masks.

The CDPH Guidance expressly states that no person can be prevented from wearing a mask as a condition of participation in an activity or entry into a business.

Despite the face-covering mandate, four types of individuals are exempted from wearing masks at all times:

  • Certain children.  Persons younger than two years old.  Very young children must not wear a mask because of the risk of suffocation.
  • Persons with medical conditions.  Persons with a medical condition, mental health condition, or disability that prevents wearing a mask.  This includes persons with a medical condition for whom wearing a mask could obstruct breathing or who are unconscious, incapacitated, or otherwise unable to remove a mask without assistance.
  • Persons with hearing impairments.  Persons who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication.
  • Persons with certain jobs.  Persons for whom wearing a mask would create a risk to the person related to their work, as determined by local, state, or federal regulators or workplace safety guidelines.

Retail businesses should choose from one of these three options and create a plan swiftly.  It is essential that your workforce also has adequate training in dealing with your Company’s action plan and that a cohesive strategy is implemented for statewide businesses.  While California has lifted the majority of its COVID-19 restrictions, businesses should nevertheless be prepared to address lingering impacts for the foreseeable future, and consider these impacts on their customers and workforce.

The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation.  This article is not intended to be an unequivocal, one-size fits all guidance, but instead represents our interpretation of where applicable law currently and generally stands.  This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.

Sheppard Mullin is committed to providing employers with updated information regarding COVID-19 and its impact on the workplace.  Stay informed on legal implications with Sheppard Mullin’s Coronavirus Insights Portal which now aggregates the firm’s various COVID-19 blog posts on a broad range of topics.