ReLAxed Indoor Masking Requirements As CDC Updates Its Guidance | CDF Labor Law LLP

Irina Baranova

Los Angeles County and the City of Los Angeles issued updated indoor masking rules effective February 25, 2022 (“LA Orders”).  The LA Orders give businesses two potential “exemptions” from existing indoor masking requirements.  Option 1 permits a business to allow all fully vaccinated customers, visitors and workers to be mask free indoors.  Option 2 permits a business to allow fully vaccinated customers and visitors to be in the business mask-free, while employees will continue to be required to be masked indoors.  Unvaccinated, partially vaccinated or persons unwilling to have their vaccination status verified must continue to be masked indoors in public.  

A business that wishes to undertake Option 1 must:

  • Verify proof of full vaccination OR negative COVID test before entry into the business for all persons, age 5 or older.
    • Proof of vaccination requires review of (a) a photo id and (b) a VAX card, photo of VAX car, digital version, etc…  So, employers that relied on self-certification of vaccination status, permitted by Cal/OSHA, will need to comply with this higher verification requirement.
    • Proof of negative COVID Test requires review of (a) a photo id and (b) a printed, email or text from the provider or lab.  Over-the-counter tests are not acceptable for customers or visitors, however, employee “self-testing” in compliance with CalOSHA’s rules is acceptable.
      • Customers’ and visitors’ tests must be within 2 days if PCR, or 1 day, if antigen.  Employees may submit a negative test every 3 days and no-cost testing must be made available to onsite employees under Option 1.

Under both options, there is no need to verify the status of persons who will be indoors for a short time including making deliveries, pick-ups, repairs, services, to pass through to an outdoor portion of the facility, use a restroom and/or order, pick up or pay for “to go” drink or food.  However, these persons must wear a well-fitted mask at all times.

Under Option 2, as all employees must remain masked, a business must verify that customers and visitors who wish to unmask are fully vaccinated or tested negative for COVID as described above.  However, the business is not required to verify employee vaccination or COVID test status. Under this exemption, fully vaccinated customers are permitted to unmask indoors and the balance of customers or visitors may only unmask when actively eating or drinking indoors. 

Finally, should a business elect either Option 1 or 2, it must offer to provide, at the employer’s expense, respirators (N95, KN95/KF94) to all employees.

The Los Angeles Orders were written and issued in advance of the CDC’s updated guidance that issued on February 25, 2022.  The new CDC guidance provides local officials further parameters about the need (or lack thereof) for masks in indoor public places.  To determine the COVID-19 community risk level (low, medium or high), the CDC analyzes three factors:

  • New COVID-19 admissions per 100,000 population in the past 7 days,
  • the percent of staffed inpatient beds occupied by COVID-19 patients, and 
  • Total new COVID-19 cases per 100,000 population in the past 7 days — to determine the COVID-19 community level. 

Under the CDC’s new assessment, about 30-40% of the country continues to be listed as “High” risk of transmission.  Anyone can easily check the CDC’s assessment of the risk of COVID-19 in their county.  Currently, Los Angeles and San Diego Counties continue to be “High”, Orange, San Bernardino, Riverside, Sacramento, and Santa Clara are “Medium” and most other Bay Area counties are “Low”.  

https://www.jdsupra.com/legalnews/relaxed-indoor-masking-requirements-as-8750272/

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