In light of the decreasing rates of COVID-19 infections and hospitalizations, Los Angeles County is relaxing its current mask mandate. Pursuant to the revised Los Angeles County Department of Public Health Order (the “Revised Order”), effective at 12:01 am on Friday, February 25, 2022, businesses may elect to allow workers, customers and guests who are fully vaccinated not to wear a mask if certain conditions are met. 

The Los Angeles Department of Public Health describes the Revised Order as providing many employers and indoor businesses, including offices, bars and gyms with two options for easing mask requirements. With the first option, employers may choose to relax mask requirements for fully vaccinated workers, customers and guests, so long as certain conditions are met. The second option is to continue to require workers to wear masks, but to allow fully vaccinated customers and guests not to wear masks, so long as certain conditions are met. Also, employers are not required to elect either option, and instead may choose to continue to require all individuals to wear masks. 

If an employer elects the first option to allow all fully vaccinated workers, customers and guests not to wear masks, the conditions that must be met include the following:

• All workers, customers and visitors (ages 5 or older) need to show proof of full vaccination, or a recent negative viral test to enter the premises.
• Individuals who show satisfactory proof of full vaccination do not need to wear a mask indoors.
• Customers and guests who do not show satisfactory proof of full vaccination must:
  • Provide proof of a negative COVID-19 viral test result prior to entry (testing requirements are described below); and
  • Continue to wear a well-fitting mask while indoors, except when actively eating or drinking.
• Workers who do not provide satisfactory proof of full vaccination must:
  • Provide proof of a negative COVID-19 viral test every 3 days prior to entering the premises; and
  • Continue to wear a well-fitting mask while indoors, except when actively eating or drinking.
• Individuals who do not show proof of full vaccination or who do not show proof of a negative test may not enter the premises.

If an employer elects the second option, the conditions that must be met include the following:

• All workers will continue to wear masks indoors.
• Customers and guests who show satisfactory proof of full vaccination do not need to wear a mask indoors.
• Customers and guests who do not show satisfactory proof of full vaccination must:
  • Provide proof of a negative COVID-19 viral test result prior to entry; and
  • Continue to wear a well-fitting mask while indoors, except when actively eating or drinking.
• Customers and guests who do not show satisfactory proof of full vaccination or who do not show proof of a negative test may not enter the premises.

Note, the Revised Order uses the term “workers” so as to include contractors, as well as employees.

Required Proof of Full Vaccination or Qualifying Recent Test Pursuant to the Revised Order

An individual is fully vaccinated if it has been two weeks or more after the second dose in a 2-dose series (e.g., Pfizer-BioNTech or Moderna) or 2 weeks or more after a single-dose vaccine (e.g., Johnson and Johnson/Janssen). Satisfactory proof of full vaccination will include:

• The individual’s photo identification; and
• One of the following forms of evidence of vaccination (all of which must include name of the person vaccinated, the type of vaccine provided, and the date of each dose)
  • Vaccination card
  • A photo (physical or electronic) of the vaccination card
  • Other documentation of full vaccination from a healthcare provider
  • The digital vaccine record

A recent negative test that qualifies under the Revised Order must have been taken within 2 days of entry if a PCR test, or within 1 day of entry if an antigen test. Satisfactory proof of a recent negative COVID-19 viral test will include:

• The individual’s photo identification; and
• A printed document, or an email or text message from a test provider or laboratory that shows the test result, the person’s name, date of test, and type of test. 

Results from over-the-counter (OTC) self-test kits are not an acceptable form of proof for customers and visitors. Employers may accept negative test results from OTC self-test kits for employees only if used per Cal-OSHA requirements. Cal-OSHA requires that, if an OTC test is used, it cannot be both self-administered and self-read, unless observed by the employer or an authorized telehealth proctor. The employer may observe the administration of the OTC test by having an employee test in the presence of an appropriate employer representative, or via video conference.

Employers must provide respirators and allow employees to wear masks if they want to do so.

An employer’s election to ease mask restrictions pursuant to the Revised Order does not change employees’ legal rights to wear masks if they choose to do so. Consistent with this, the Revised Order requires that employers provide employees with a well-fitting respirator (e.g., N95, KN95, KF94) as a condition to easing mask restrictions.

While not an express requirement, employers should communicate and meaningfully enforce policies prohibiting retaliation against employees who choose to wear a mask or raise concerns about workplace safety.

Employers must continue to adhere to the requirements of Cal/OSHA ETS.

Pursuant to the Cal/OSHA Emergency Temporary Standard, workers are required to wear masks at work (when indoors or in vehicles) after recovering from COVID-19 and returning to work, as well as after exposure to COVID-19. Generally, such individuals would need to wear a mask and maintain a social distance of six feet for 10 days following the COVID-19 case or exposure. The specific requirements can be found here.

We encourage you to reach out to a member of our Employment Law Group with any questions or concerns:

• Wendy Lane
• Nancy Bertrando
• Karina Sterman
• Kelly Raney