Updated December 16, 2021
Following our initial alert, we learned that the CDPH updated its FAQs on December 16, 2021 to indicate that the requirement to wear masks indoors applies to all workplaces, regardless of whether they serve the public, or are open to the public. The FAQ confirms that masks may be removed if the workplace consists of a single employee, or while an employee is alone in a closed office or room.
Effective December 15, the California Department of Public Health (“CDPH”) is requiring masks to be worn in all indoor public settings, irrespective of vaccine status, for the next four weeks (December 15, 2021 through January 15, 2022). See the text of the brief order, Guidance for the Use of Face Coverings.
The CDPH order does not define “indoor public settings” and provides no guidance as to whether this order only impacts businesses who serve the general public.
Given this lack of formal guidance, Gordon & Rees contacted the CDPH in hopes of learning more about the order. We were told that for any business that has more than one employee, employers should require masking indoors. However, the CDPH representative could not support this direction with reference to the order and acknowledged the answer is not clear from the order or the recently updated FAQs, found here. In light of this, it is anticipated that new guidance will be posted soon.
The intent of the order appears to ensure people mask when visiting businesses as a member of the public in order to slow the spread of COVID-19 which is on the rise again following gatherings for Thanksgiving. The CDPH order specifically states that “in workplaces” employers are subject to the Cal OSHA Emergency Temporary Standard ("ETS"), which has its own rules for employers to follow relative to face coverings.
The FAQ for the CDPH order indicates that people are exempt from the masking requirement if they “are working alone in a closed office or room.” Unfortunately, this guidance is not entirely helpful as this exemption, as written, applies equally to a retail store manager with an office as to a Human Resources Manager for a business that does not meet with members of the public. A retail store is clearly an indoor “public” setting, whereas a private office does not so clearly fit that description.
For now, the most conservative approach for California employers is to direct all employees to wear masks if they are not in a private, enclosed space until further guidance is provided.
Should you have further questions on this mandate, please reach out to your trusted Gordon & Rees attorney.