California

On December 13, 2021, the California Department of Public Health (CDPH), citing the Omicron variant and the need for additional protection during the holiday season, issued statewide guidance requiring face masks to be worn in all “indoor public settings” regardless of vaccination status from December 15, 2021 through January 15, 2022.

While the guidance itself does not define “indoor public settings,” the published FAQs clarify that the requirement applies to “all workplaces, regardless of whether they serve the public, or are open to the public” and that masks may also be removed “if the workplace consists of a single employee, or . . . while an employee is alone in a closed office or room.”

The following persons are exempt from the mask mandate:

  • Those younger than two years old;
  • Those with a medical condition, mental health condition or disability that prevents them from wearing a mask. This includes persons with a medical condition for whom wearing a mask could obstruct breathing or who are unconscious, incapacitated or otherwise unable to remove a mask without assistance;
  • Those who are hearing impaired, or must communicate with the hearing impaired where the ability to see the mouth is essential for communication; and
  • Those for whom wearing a mask would create a workplace safety risk.

The mandate applies only to those local health jurisdictions that did not, as of December 13, 2021, have an indoor mask mandate in place for public settings regardless of an individual’s vaccine status.

As such, if a local, (i.e., county or city), restriction went into effect before December 13 and it requires indoor masking in public settings irrespective of vaccine status, those local health orders, and not the CDPH mandate, will continue to apply. For example, fully vaccinated residents of San Francisco, Alameda, Contra Costa and Marin Counties may remove their masks in certain indoor spaces, in accordance with the terms of their respective local health guidance.

Nevertheless, employees in such counties can still elect to wear a mask at work. Further, for employers subject to Cal/OSHA COVID-19 Emergency Temporary Standards (ETS) and/or to the Cal/OSHA Aerosol Transmissible Diseases Standard (PDF), those standards continue to apply.

New York City

On December 15, 2021, New York City issued guidance to employers on the private employer vaccine mandate that Mayor Bill DeBlasio announced earlier this month. The guidance conveys the following:

  • The vaccine mandate applies to all New York City employers (regardless of size) that maintain a workplace in New York City.
  • By December 27, 2021, all employees, interns, volunteers and independent contractors of covered employers who perform in-person work or interact with the public must show proof they have received at least one dose of a COVID-19 vaccine. Workers who have received the first dose of a double-dose vaccine by December 27 will then have 45 days to show proof of their second dose.
  • The vaccine mandate does not apply to workers who: (1) work from home and whose employment does not involve interacting in-person with co-workers or members of the public; (2) enter a workplace briefly for a limited purpose; or (3) are non-New York City residents and performing artists or college or professional athletes (as well as those who are accompanying such individuals).
  • Employers must verify and keep a record of each worker’s proof of vaccination by December 27. Employers may fulfill this requirement by: (1) maintaining a copy of the worker’s proof of vaccination (i.e., vaccine card); (2) creating a form that includes the worker’s name and vaccination status; or (3) checking each worker’s proof of vaccination each day they enter the workplace and keeping a record of such verification. For non-employee workers, including independent contractors, businesses may request that the worker’s employer confirm that the worker is vaccinated (and keep a record of such confirmation) instead of verifying proof of vaccination pursuant to the methods outlined above.
  • Workers who have requested and been granted a reasonable accommodation for a medical or religious reason are not required to comply with the vaccine mandate. The guidance provides detailed information, forms and checklists to help employers evaluate requests for reasonable accommodations.
  • Employers must also post a certificate in the workplace affirming they are in compliance with the vaccine mandate by December 27.

Questions? Please contact Dan McCoy for California-related updates, Matt Damm for New York City-related updates, or any member of Fenwick’s Employment Practices Group for general inquiries.

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