Dear Clients and Friends:
Welcome to Friday Five Newsletter, where we share the Top Five Things You Need to Know This Week to Protect your Work Community™ (in particular with respect to COVID-19) and help it thrive. Below are recent developments in the law, or questions that we find ourselves answering a lot. There is an important update on mask rules, although its mostly a "stay tuned." As always, please reach out with any questions, we are here for you. And if you are curious about our prior Friday Five or other Newsletters, you will find them here.
(1) What is California’s Position on the Mask Mandate and Vaccines for Employers; aka, Can I Allow Vaccinated Employees to Return to Work Unmasked?
Last Friday we shared with you that the California Occupational Safety & Health Standards Board (the “Cal/OSHA Board”) published proposed revisions to Cal/OSHA’s Emergency Temporary Standards ("ETS"), relaxing some of the more burdensome requirements but not going as far as the Centers for Disease Control's earlier changes. Here is a link to that update. As we shared, there was a lively debate at the Board level (with many arguing that the revisions did not go far enough in relaxing the prior ETS), and the Cal/OSHA Board voted to create a committee to work with Cal/OSHA to work on a revision.
At a June 9, 2021 emergency meeting the Cal/Osha Board voted unanimously to withdraw the revisions approved on June 3, 2021.
What this means for you is that the ETS we outlined in our last Friday Five will not become effective and should not be followed at this time. Cal/OSHA will review new mask guidance and bring any recommended revisions to the Cal/OSHA Board. New revisions could be considered as early as the regularly scheduled Cal/OSHA Board meeting (June 17). In the meantime, the protections adopted in November, 2020 will remain in effect. If you need a reminder of those requirements, let us know, but essentially this means stay the course and stay tuned. Given the hue and cry, we expect updates to be forthcoming pretty quickly.
(2) Fed/OSHA has Issued New Employer Guidance on Masks.
On June 10, 2021 the federal Department of Labor's Occupational Safety and Health Administration ("fed/OSHA") has issued an Emergency Temporary Standard ("ETS") related to protecting health care workers from COVID-19. The rule takes effect on the date it is published, which has yet to be determined.
According to the ETS, employers in the health care sector are required to maintain social distancing protocols, make sure that patients are screened for virus symptoms and provide employees paid time off for the purpose of getting vaccinated or recovering from vaccine side effects. The ETS includes a carve-out for certain workplaces where all workers are fully vaccinated and people who may have COVID-19 are barred.
For employers outside of health care, OSHA has issued updated guidance, but no ETS applies.
(3) What to Expect in California on June 15.
California will eliminate its color-coded reopening system on that date, and all counties, regardless of how high or low coronavirus transmission is, will be allowed to reopen at that time. Capacity limits should be eliminated along with physical distancing for most individuals, and mask mandates will loosen. Counties, cities and local businesses still have the right to set their own capacity limits or other rules, as they see fit.
The more strict current guidelines are anticipated to apply to conferences, conventions, concerts and sporting events until October 1, 2021 (a re-evaluation will occur on September 1, 2021).
Beginning June 15, 2021 California's mask guidelines will align with the recommendations from the Centers for Disease control: fully vaccinated individuals will not be required to wear a mask, including in retail stores, gyms, bars, restaurants or religious facilities. Masks will continue to be required in hospitals, prisons, homeless shelters and during travel (including air travel and mass transit). Individuals who are not vaccinated remain expected to wear a mask. California apparently is drafting best practices for businesses to follow with respect to determining whether an individual is vaccinated.
California recommends a delay in non-essential travel for individuals who are not vaccinated, but no travel restrictions exist. Proof of a negative COVID-19 test is not required to enter the U.S. nor California, but a particular destination still may require a negative test result.
(4) Say Yellow to a New Tier in San Diego.
Effective June 9, 2021, San Diego moved into California's Blue Print for a Safer Economy's yellow tier. What this means, in relevant part:
- Restaurants: Indoor and outdoor dining continues, with max capacity at 50%. Capacity may increase to 75% if all guests show proof of a negative COVID-19 test or full vaccination.
- Gatherings: Outdoor gatherings should be kept to a max of 100 people; indoor gatherings should be kept to 50% capacity or 50 people, whichever is fewer.
- Wineries, Breweries, Distilleries: Indoor and outdoor service can continue with COVID safety modifications, but capacity can ramp up to 50% (up from 25% in the orange tier), or 200 people, whichever is fewer. Capacity may increase to 75% if all guests show proof of a negative COVID-19 test or full vaccination (and the rule about NOT having to serve food at these businesses still stands).
- Bars (without food service): Can open indoors with modifications, including 25% max capacity or 100 people, whichever is fewer. Capacity may increase to 37.5% if all guests show proof of a negative COVID-19 test or full vaccination.
- Gyms: Capacity can increase to 50% (up from 25% under the orange tier rules). Saunas, spas and steam rooms can reopen. Capacity may increase to 75% if all guests show proof of negative test or full vaccination.
- Museums, Zoos, Aquariums: Can operate indoors and outdoors with modifications. Also, the capacity limits of 50% -- which was the rule under the orange tier – no longer apply.
- Private Events: Outdoor events – with tickets, a guest list, assigned seating – can run at a max capacity of 200 people, or 400 people if all guests test negative for COVID-19 or show proof of full vaccination.
(5) In the absence of any other significant development this week, how about some COVID-19 humor?
According to a friend of ours, all of us fell into one (or more) of four categories during COVID-19: (1) Hunk (if you spent a lot of time working out with your Mirror and Peloton) (2) Chunk (if you spent your time learning to break bread and cookies during the pandemic; aka "the COVID-15"); (3) Monk (if you tucked in, went out very little and binge watched Netflix); or (4) Drunk (we think this one is self-explanatory). With some help, we added a fifth category of (5) Funk (which is what so many of us found ourselves in). And you are not alone if you managed to hit three or more categories. We welcome your thoughts for additional "unk" categories. Meanwhile . . .
We Are Here For You
We hope this information is helpful as you navigate the recent developments and constantly changing laws. Please stay tuned, we will continue keeping you updated. And please, reach out if you have questions or just want to talk!