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The New Mask Guidance

by Jennifer Shaw and Melissa Whitehead | | May 19, 2021

One of our favorite clients (ok, you are ALL our favorites) emailed me recently about the CDC’s new mask guidance. She asked a very practical question: “Do I follow the CDC guidance, or California’s guidance? And why the %$^* does everything keep changing! I have a headache.”

Well, dear reader, nothing is as simple as you might hope. First, as you might recall, the Cal/OSHA Board is meeting on May 20, 2021, to consider the proposed amendments to the current COVID-19 Emergency Temporary Standards (ETS). The amendments change many things about the current ETS (see the proposed amendments here).

Under the proposed rules, employers will be required to have “documentation” showing that an employee is “fully vaccinated,” (i.e., two weeks past their last shot). That means you will need to see vaccination cards. At this point, our best advice is to keep a copy of the card (away from the regular personnel file, of course). We also recommend creating a confidential log on which to track the date each employee becomes fully vaccinated, which will become even more important if booster vaccinations are necessary.

Can you require employees to wear a badge or some other indication that they have been vaccinated? Probably. Stay tuned for the results of the upcoming Cal/OSHA meeting, but we think that’s fine, particularly because under the ETS amendments, individuals may only be unmasked indoors if everyone in the room is vaccinated.

Of course, if the ETS amendments are adopted, then employees who work in public spaces will still need to wear masks, because there will be no practical way to ensure everyone in the room is vaccinated.

One interesting side note: if adopted, portions of the amended ETS will expire on July 31, 2021, including those related to certain physical distancing requirements. However, new provisions will become effective at that point. One of those provisions requires employers to provide N95 respirators to all unvaccinated employees who work inside on a daily basis. Better stock up!

Confused? Register here for our June 7, 2021, webinar, “Vaccinations, Masks, COVID-19 Reasonable Accommodations, and California’s Reopening: Everything You Need to Know!

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