On June 18, 2020, the California Department of Public Health issued a statewide “Guidance for the Use of Face Coverings.” Although the guidance is not an executive order and does not refer to any authorizing legal authority, Governor Gavin Newsom tweeted, “NEW: Californians are now REQUIRED to wear face coverings in public spaces” (Emphasis in the original.) The State of California’s COVID-19 webpage also states that Californians “must wear face coverings in common and public indoor spaces and outdoors when distancing is not possible.”
Definition of ‘Cloth Face Covering’
The guidance defines “cloth face covering” as a “material that covers the nose and mouth.” A cloth face covering can be made from a variety of materials, including cotton, silk, or linen, and can be factory-made, sewn by hand, or improvised from household items such as T-shirts or towels.
When Californians Must Wear Face Coverings
The guidance mandates that Californians wear face coverings when they are “inside of, or in line to enter, any public space.”
In addition, employees must wear face coverings when they are “interacting in-person with any member of the public” and when working in any space visited by the public, even if no one from the public is present. Employees also must wear face coverings in any enclosed area when other persons are present if physical distancing is not possible. They must wear face coverings when working in or walking through common areas, such as hallways or elevators. Employees also must wear cloth face coverings when they are “working in any space in which food is prepared or packaged for sale or distribution to others.”
Finally, Californians must wear face coverings when they are obtaining services from the healthcare sector; driving, waiting for, or riding on public transportation; and driving or riding in taxis, private car services, or ride-sharing vehicles.
The guidance provides for limited exemptions from the requirements, including for
- “children aged two and under”;
- “persons with a medical, mental health, or developmental disability that prevents wearing a face covering”;
- “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 face covering would create a risk to the person related to their work, as determined by local, state, or federal regulators or workplace safety guidelines”;
- persons eating or drinking in restaurants or other establishments offering food or beverage service, provided that the persons can maintain a distance of at least six feet from others who are not members of their households; and
- “persons who are engaged in outdoor work or recreation such as swimming, walking, hiking, bicycling, or running, when alone or with household members,” when maintaining a minimum six-foot distance from others.
Because the guidance took effect immediately, on June 18, 2020, employers may want to consider implementing procedures in accordance with the guidance’s mandates.
First, the guidance requires that customers wear face coverings when standing in line for and when inside a business. In order to follow the guidance, employers may want to consider preparing written procedures for and training employees on what to do if customers do not wear cloth face coverings.
Second, employers may benefit from implementing office layouts that allow employees to work at least six feet away from one another. If employers cannot design their offices in such a manner, employees will likely have to wear face coverings during the workday.
Third, employers may want to prepare written standard operating procedures as to when employees must wear cloth face coverings. Employers may also want to consider distributing the procedures to all employees.
Fourth, employers may be well served to consider posting on workplace entrances notices advising customers, visitors, and vendors that they must wear face coverings. Many counties already obligate employers to post their COVID-19 protection plans.
Fifth, although the guidance is not set forth in an executive order, a failure to follow the guidance may affect employers’ legal positions in certain situations. For example, an employer’s failure to follow the guidance may make it difficult to overcome the presumption, for workers’ compensation claims, that an employee became infected with COVID-19 at the workplace. Similarly, an employer that does not follow the guidance may find it more difficult to reject an employee’s request to work from home as a reasonable accommodation because the employee is concerned about contracting the virus—particularly if the employee has an underlying medical condition that makes her or him more vulnerable to the virus.
Finally, employers also should review their counties’ and cities’ COVID-related orders. These orders, too, may provide guidance regarding face-coverings. Employers likely would be well-served to follow the order that is most strict.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates 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 programs.