Mask Up: Masks Required in All Indoor Public Settings

Client Alert

December 2021

On December 13th the California Department of Public Health (“CDPH”) released guidance requiring face masks to be worn in all indoor public settings, regardless of vaccination status, from December 15, 2021 through January 15, 2022. This mandate comes on the heels of the Omicron variant being detected in California and the CDPH guidance stating that more protection is warranted during the holiday season.

The guidance requires that all individuals comply regardless of their vaccination status but exempts the following individuals from the mask requirements:

“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 to the person related to their work, as determined by local, state, or federal regulators or workplace safety guidelines.”

Additionally, the existing exceptions to masking requirements continue to apply in the following circumstances in indoor public settings:

Masks may be removed while actively eating or drinking.
Persons who are working alone in a closed office or room.
Persons who are actively performing at indoor live or recorded settings or events such as music, acting, or singing. If performers do not wear a mask indoors while performing, CDPH strongly recommends that individuals undergo screening testing at least once weekly. An FDA-approved antigen test, PCR test, or pooled PCR test is acceptable for evaluation of an individual's COVID-19 status.
Persons who are obtaining a medical or cosmetic service involving the nose or face for which temporary removal of the face covering is necessary to perform the services.
Workers who wear respiratory protection, per Cal/OSHA requirements.
Persons who are specifically exempted from wearing masks by any other CDPH guidance.

The updated CDPH guidance only applies to counties that do not already have an existing indoor masking requirement in public settings that applies irrespective of individuals' vaccine status. For counties that have pre-existing masking requirements regardless of vaccination status in indoor public settings prior to December 13, 2021, those local health orders continue to apply.

The guidance does not state what constitutes an “indoor public setting.” The CDPH Fact Sheet lists grocery stores and movie theaters as indoor public places, however, many offices are left guessing whether these new requirements apply to them. For the time being, employers should assume that any area of their business accessible by the public, like lobbies or waiting areas will be considered an indoor public setting. Areas of the office that are behind locked doors or only accessible to the employees are not likely considered an indoor public setting and would not be subject to the new requirements. The current mask guidance under the Cal/OSHA emergency temporary standards will continue to apply even in these “non-public” settings. This guidance is discussed in our prior alert.

Stradling Has Resources To Help You Stay Compliant

To assist California employers in complying with the various COVID-19 requirements in California, Stradling has created COVID-19 protocols which incorporate all the new requirements and clarifications of the ETS and help businesses comply with federal, state, and county requirements. We encourage you to reach out if you are in the process of reopening or you have been conducting business and want to make sure you are in compliance with the applicable industry guidelines.

Please do not hesitate to reach out to us for assistance in dealing with the effects of the COVID-19 pandemic on your company.

Labor and Employment Practice Group

Jeff Dinkin

805.730.6820

jdinkin@stradlinglaw.com

Jared Speier

805.730.6804

jspeier@stradlinglaw.com

Intellectual Property Practice Group

Steven Hanle

949.725.4126

shanle@stradlinglaw.com