On February 7, 2022, the California Department of Public Health (“CDPH”) issued updated guidance concerning the use of face coverings in indoor public settings and businesses. The new rules concerning the use of face coverings takes effect on February 16, 2022, except where a local jurisdiction (e.g., the County of Los Angeles through its Department of Public Health) has adopted requirements that are more prescriptive.
The purpose of this bulletin is to provide employers information concerning the requirements under the new CDPH guidance and advise them about how the updated guidance may implicate other laws and legal obligations.
General Requirements.
The updated CDPH guidance represents a return to the requirements put into place in November 2021 prior to the emergence of the Omicron variant and ensuing surge in COVID-19 cases.
Under the new guidance, fully vaccinated individuals are no longer required to wear face coverings in most indoor public settings[1], but individuals who are not fully vaccinated must continue to do so. In order to ascertain the vaccination status of individuals in order to determine whether they must wear a face covering, the CDPH guidance provides, but does not explain, that it is permissible to “implement vaccine verification.”
Regulatory Obligation to Obtain Documentation of Employees’ “Fully Vaccinated” Status
In order to understand how the new CDPH guidance applies, employers must first understand the regulatory requirements related to determining an employee’s vaccination status under the Cal/OSHA Emergency Temporary Standards (“ETS”).
The Cal/OSHA ETS provides that, in order for an employee to be considered “fully vaccinated”, the employer has documented that at least two weeks have passed since the employee received the final dose of the primary vaccination.[2] Only after the employer has documented such status is the employee considered “fully vaccinated” and the employer is permitted to exempt the employee from the regulatory requirements related to the use of face coverings indoors and in vehicles.[3]
Therefore, in order to comply with the regulations and exempt only qualified employees from the face covering requirements, an employer must first document that the employee is “fully vaccinated.” While that regulatory definition does not expressly provide what, if any type of documentation is required in order for an employer to “document” the employee’s vaccination status, Liebert Cassidy Whitmore recommends that the employer only accept documentation, electronic or hard copy, of the employee’s vaccination status that has been generated by the Centers for Disease Control and Prevention (“CDC”), the CDPH, or the employee’s health care provider.
Statutory Obligation to Obtain the Employee’s Authorization to Use Vaccination Information
Before an employer may allow for a “fully vaccinated” employee to go without wearing a face covering in the workplace, it is also necessary that the employer comply with the Confidentiality of Medical Information Act (“CMIA”)[4] and obtain the necessary authorization from the employee whose medical information is at issue.
The CMIA expressly limits employers from using employee medical information, except for certain limited purposes enumerated in the Civil Code. Using employees medical information in order to exempt employees from health and safety requirements is not one of the limited permitted uses, so the employer must obtain authorization from the employee to use their information for this legitimate and non-discriminatory purpose prior to exempting the employee from the face covering requirement.
Therefore, an employer must request and receive the authorization from the employee to use their vaccination information to exempt them from the face covering requirement. If an employee refuses to provide the CMIA authorization, the employers must treat the employee as though they are not fully vaccinated.
We recommend that employers have employees sign a CMIA-compliant form to authorize the employers’ use of employee medical information.
General Obligation to Adhere to the Most Restrictive or Prescriptive Guidance in Your Jurisdiction
While the CDPH may be relaxing the statewide face covering requirements, employers should note whether the local public health authority has adopted a more stringent face covering requirements. .
Many local jurisdictions adopted and some will maintain face covering requirements that are more restrictive than those in the new CDPH guidance. As with all COVID-19-related issues where there are overlapping jurisdictional issues, employers should take note of all potentially applicable guidance or requirements and comply with the most restrictive and prescriptive guidance that applies to them.
If you have questions about the new CDPH guidance and how it may affect your operations, LCW attorneys are available to answer your questions.
[1] In certain high-risk settings, all individuals must wear face coverings, regardless of their vaccination status. These settings include public transit, indoors in K-12 schools and childcare, in emergency shelters, healthcare settings, correctional facilities, homeless shelters, long-term care settings, and senior care facilities.
[2] 8 CCR 3205(b)(9) defines “fully vaccinated” as a person’s status two weeks after completing a primary vaccination with a COVID-19 vaccine that has been approved or authorized by the FDA, or listed for emergency use by the World Health Organization.
[3] See 8 CCR 3205(c)(6)(A).
[4] Civil Code section 56.10, et seq.
