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 took 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 more restrictive requirements.
However, as set forth in this bulletin, face-covering requirements remain mandatory in school settings regardless of vaccination status.
General Requirements in CDPH Updated Face Covering Guidance.
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, but individuals who are not fully vaccinated must continue to do so. Employers may only exempt qualified employees from the face covering requirements after they have been able to document that the employee is “fully vaccinated.”
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”) 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. Because the CMIA does not permit employers to use such medical information in order to exempt employees from health and safety requirements, 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, in order to comply with the CMIA and exempt only those qualified employees from the face-covering requirement, 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 for the purpose of the face covering requirements.
Given that the CMIA sets forth a number of requirements in order for an authorization to be valid, Liebert Cassidy Whitmore recommends that employers consider using a CMIA-compliant form that we have developed for this express purpose, and which provides authorization to employers to use employees’ medical information for other legitimate and non-discriminatory purposes that may be implicated by the present public health emergency.
Requirements in School Settings
The masking requirements for all individuals in K-12 schools and childcare settings remains unchanged. K-12 students and preschool students two (2) years and older are required to mask indoors, and adults in K-12 school and childcare settings are required to mask when sharing indoor spaces with students. Surgical masks or higher-level respirators (N95s, KN95s, KF94s) are highly recommended. The CDPH has stated that it is working to update masking requirements at schools and additional adjustments to the state’s policies will be shared in the coming weeks. It is also important that schools also continue to follow local guidance and orders regarding face coverings, which may impose more stringent requirements than those imposed by the state.
If you have questions about the new CDPH guidance and how it may affect your operations, LCW attorneys are available to answer your questions.