Why California workers could still keep masks after OSHA ruling

A sign reading 'Masks Distancing Pizza Beer' is displayed above a restaurant and bar on Sunset Boulevard amid the COVID-19 pandemic on June 29, 2020 in Los Angeles, California.
A sign reading 'Masks Distancing Pizza Beer' is displayed above a restaurant and bar on Sunset Boulevard amid the COVID-19 pandemic on June 29, 2020 in Los Angeles, California. Photo credit Mario Tama/Getty Images

Indoor workplaces in California are clear to allow workers vaccinated against COVID-19 to no longer wear a mask, but that doesn’t mean businesses have to.

Cal/OSHA approved new rules on Thursday, which were immediately put into effect with Gov. Gavin Newsom’s executive order later that day, clearing the way for employers to let their vaccinated employees not wear face coverings, provided their vaccination history is documented.

But under those new rules, businesses can continue to enforce masking of customers and employees, if they so choose.

"The new order makes clear there's nothing that prevents an employer from taking more precautions, or (some) additional steps," Walter Stella, an employment lawyer at the San Francisco firm Cozen O’Connor, told KCBS Radio’s Margie Shafer and Jim Taylor on Friday morning.

"So for example, an employer can simply say, 'Look, I don't care who is vaccinated. I want everyone to wear face coverings at work,' " he added. "An employer has the right, under this new order, to do that."

Stella said employers, essentially, have two options.

They can require all employees to wear face coverings, or they can document which employees are fully vaccinated. With the documentation on file, those workers then wouldn’t have to wear masks.

Businesses must keep N-95 masks on hand for workers who aren’t documented as fully vaccinated. Stella explained that businesses must make "reasonable accommodations" for unvaccinated workers, especially those who aren’t vaccinated for medical-related reasons, ensuring they don’t suffer any kind of adverse action like a dock in pay.

The rules haven’t been in effect for long, but Stella acknowledged that litigation against them are possible. Currently, Stella said "claims are arising" of employees saying their employer mandating COVID-19 vaccinations go against public policy.

The Equal Employment Opportunity Commission said last month that employers can incentivize employees to get vaccinated without violating anti-discrimination law, but Stella said "other issues" have been raised legally.

"Some of it, actually, is around this question of requiring someone to be vaccinated when the vaccines have not been FDA-approved," Stella said. "We have to remember that the vaccines people are getting have only been authorized for emergency use, and there's questions about an employer being able to require someone to take a vaccine that has only been approved for emergency use."