California will keep its existing mask guidance in place until June 15, 2021, when it aims to “fully reopen the economy.” Thereafter, California will align its mask guidance with the Centers for Disease Control and Prevention’s mask guidelines for fully vaccinated individuals.

Under California’s existing mask guidance (last updated May 3, 2021), face masks are required regardless of COVID-19 vaccination status in indoor settings outside of one’s home, including at businesses and on public transportation, except for when a person is alone in a closed office or room or in very limited other settings, and for children under two years of age, certain persons who are hearing impaired, persons with medical or mental health conditions that prevent wearing a mask, or persons for whom wearing a face mask would create a risk to the person related to their work, as determined by local, state, or federal regulators or workplace safety guidelines.

On May 13, 2021, the Centers for Disease Control and Prevention (CDC) published new guidance (last updated May 16, 2021) that allows fully vaccinated individuals to forgo masks and social distancing requirements in most indoor and outdoor locations, all subject to state and local directives and restrictions. Morgan Lewis previously analyzed the CDC’s new guidance. On May 17, 2021, California announced that it will align its mask guidance with the CDC’s, effective June 15, 2021, while noting that fully vaccinated individuals still have the option to wear a face mask if they choose.

California’s announcement did not address whether employers should seek proof to confirm vaccination status. State and local health officials communicated reluctance to adopt the CDC’s guidance earlier than June 15 because not enough people, including children and teenagers, have been vaccinated in California, and to allow businesses to prepare for the new guidance.

Once California’s new guidance to align with the CDC’s guidance becomes effective, California businesses will be permitted to do the following:

• Allow fully vaccinated persons to stop wearing masks indoors and in most outdoor settings, and to stop practicing social distancing.
• Ask about employee vaccination status and request proof of vaccination. However, if retained, then the information of the employee’s vaccination status, including any proof of vaccination, should be maintained as confidential medical information. Access to such information should be limited to individuals in human resources and/or legal departments and/or management who have a legitimate business need to know (i.e., those who are charged with administering and enforcing workplace health and safety protocols).
• Use vaccination status to guide employee access to buildings, workspaces, and events. However, employers must continue to consider requests for reasonable accommodation from employees unable to receive a vaccine due to a medical condition or sincerely held religious belief.
• Voluntarily choose to require masks and social distancing for workers if a business prefers (which businesses may do based on ease of administration or concerns from employees or the public regarding transmission of COVID-19). Individual employees who are fully vaccinated may also choose to continue to wear masks and social distance.

We anticipate that many local jurisdictions in California will follow the state’s lead. Employers should monitor and review the directives in the local jurisdictions in which they operate and adhere to more restrictive measures if the local jurisdictions do not align their directives with the CDC and state guidance allowing fully vaccinated persons to not wear masks in most settings.

Businesses also should monitor any new standards or guidance from the California Occupational Safety and Health Administration (Cal-OSHA) on this topic.[1] Finally, we recommend that employers train managers on how to communicate with employees about vaccine status issues.

[1] Cal-OSHA is scheduled to meet May 20, 2021, to address “readoption” of its Emergency Temporary Standards, with various changes proposed.

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