Cal/OSHA “Encourages” – But Does Not Yet Require – Indoor Masking Regardless of Vaccination Status

Following recent updated guidance from the California Department of Public Health (CDPH) recommending that all individuals wear face coverings indoors regardless of vaccination status, Cal/OSHA just released a statement “encouraging” employers and workers to follow suit. While the August 25 announcement falls short of requiring businesses to enforce a universal mask mandate, developments are rapidly unfolding and things could soon change. What do California employers need to know about the latest news?

How Did We Get Here?

In late July, as the Delta variant surge began to make its mark in California and elsewhere, CDPH issued updated guidance recommending that individuals wear masks indoors, regardless of vaccination status. In addition, several counties (such as Los Angeles) issued local health orders requiring masking, regardless of vaccination status.

In a press release on August 25, Cal/OSHA stated that, “as a best practice, Cal/OSHA encourages employers and workers to follow the recent update from the CDPH recommending that all individuals wear face coverings while indoors regardless of vaccination status.”

The statement from Cal/OSHA is a recommendation at this time – not a formal mask mandate.  Therefore, with the exception of employers in jurisdictions that have mandated masking regardless of vaccination status (including Los Angeles, Sacramento, Yolo and most Bay Area counties), vaccinated employees are generally not required to wear masks indoors.

What’s on the Horizon?

However, that could change. The OSHA Standards Board may be releasing further revisions to the Cal/OSHA ETS in the next month or so to be approved at a meeting in December. Several board members have expressed concern about the spread of the Delta variant and questioned whether the Board moved “too quickly” in removing face covering requirements for fully vaccinated employees when they acted back in June. At that time, Cal/OSHA revised the ETS, stating that fully vaccinated individuals were no longer required to wear face coverings except in limited circumstances.

It’s possible that Cal/OSHA could bring back formal face covering requirements for employees regardless of vaccination status as other states have done. Only time will tell. In the meantime, California employers should consider following the recommendations of the CDC and CDPH (and now Cal/OSHA) which all recommend that all employees wear masks indoors, regardless of vaccination status.

Next Steps

With so many changes – and likely more on the horizon – California employers should follow updates closely to ensure compliance. Make sure you are subscribed to Fisher Phillips’ Insight System to get the most up-to-date information. For further information, contact your Fisher Phillips attorney, the authors of this Insight, or any attorney in our California offices.