California Unmasks—California Department of Public Health Revises Guidance for Use of Face Masks in Indoor Settings

On February 28, 2022, the California Department of Public Health (CDPH) issued new guidance, further loosening the rules for wearing COVID-19–related masks in the state. Effective March 1, 2022, unvaccinated individuals are no longer required to mask in indoor public settings, although the CDPH included “a strong recommendation” that all individuals, “regardless of vaccine status, continue indoor masking.”

The new rule applies to most indoor public settings; however, there are some exceptions where universal masking continues to be required. Continued masking for all individuals, regardless of vaccination status, continues in the following settings:

• “Indoors in K-12 schools” and childcare This requirement will terminate after March 11, 2022 (but the CDPH still “strongly recommends” continued masking).
• “On public transit” and “in transportation hubs”
• “Emergency shelters and cooling and heating centers”
• “Healthcare settings” covered by the July 26, 2021, state of California order relating to these settings
• “State and local correctional facilities and detention centers”
• “Homeless shelters”
• “Long Term Care Settings & Adult and Senior Care Facilities”

The state continues to recommend surgical masks or higher-level respirators such as N95s, KN95s, and KF94s with a good fit in indoor public settings and businesses, but these will no longer be required beginning March 1, 2022.

The CDPH provided further guidance where masking is strongly recommended and urges businesses to consider the following practices:

• Providing information to all customers, visitors, and attendees about masking recommendations
• Providing information to all customers, visitors, and attendees about good fit and filtration for masks, including wearing surgical masks or “higher-level respirators” instead of cloth masks
• Requiring all customers, guests, and attendees to wear masks if the community risk is high “or if those being served are at high-risk for severe disease or illness”
• “Requiring attendees who do not provide proof of vaccination to enter indoor Mega Events to continue masking during the event, especially when not actively eating or drinking”

The guidance notes that “[t]he following individuals are exempt from wearing masks at all times”:

• “Persons younger than two years old”
• Persons with a medical condition, mental health condition, or disability that prevents wearing a mask”
• “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 for whom wearing a mask would create a risk” due to their work, “as determined by local, state, or federal regulators or workplace safety guidelines”

Although masking will no longer be required in most circumstances, “[n]o person can be prevented from wearing a mask as a condition of participation in an activity or entry into a business.” In addition, where there are stricter local orders in place, businesses and venues must follow those orders. For example, this new order does not override the California Division of Occupational Safety and Health’s (Cal/OSHA) masking requirements for individuals who have had COVID-19 or have been in close contact with a COVID-19 case and returned to work. In addition, the city and county of Los Angeles currently have orders in place requiring masks in a number of circumstances.

Under the Cal/OSHA emergency temporary standards, employers also must continue to provide face coverings to workers and ensure the masks are worn when there are orders in place requiring masking. Businesses may also continue to enforce more stringent requirements for their customers, guests, visitors, and/or workers if they prefer to do so.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates on the California blog and in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.