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Most California Workers To Stay Masked Under Revised Rules

 June 4, 2021 at 11:13 AM PDT

Speaker 1: 00:00 A California workplace safety board recommended a more relaxed approach to masks in the workplace. Provided everyone in a room is fully vaccinated. Last night, California's division of occupational safety and health or Cal OSHA adopted the new guidance that is set to begin on June 15th. The same day as when the state will ease much of its current restrictions. As the state continues to shed long standing COVID restrictions, questions remain about how the new mass guidance will be enforced and how employers will know the vaccination status of employees. Joining me with more is legal analyst and partner at the San Diego from seltzer cap, one McMahon. And Vitech Dan Eaton. Dan, welcome. Good to be with you Jade. So, okay. What prompted Cal OSHA to adopt these new guidelines for mask wearing in the workplace? Particularly Speaker 2: 00:51 What prompted it was the updated guidance from the centers for disease control and prevention, which essentially said that the fully vaccinated people don't need to wear a mask to endorse. Uh, the problem was that what the occupational safety and health standards board, uh, enacted last night does not really fully align with the CDC guideline, which is one of the reasons the majority of the board initially voted it down before they decided these revised rules were better than the old outdated rules that would have remained in effect Speaker 1: 01:23 Among the Cal OSHA board in the lead up to this decision was sharply divided. What are people who aren't fully on board with this relaxed guidance saying there Speaker 2: 01:32 Are, uh, three basic concerns. One is, uh, that the revised rules, uh, don't align with the updated CDC guidance. The second concern is that there is an awful lot of ambiguity such as what does it mean that everyone in a room has to be a fully vaccinated? What kind of documentation does an employer have to require? The third is this requirement that employers provide unvaccinated employees and appropriate face, uh, covering of respiratory covering like N 95 for voluntary use. The concern is that employers are going to stockpile those, and that will stress the supply for first responders and what is expected to be a horrific coming up a wildfire season, as well as healthcare workers, that Speaker 1: 02:20 Requirement to provide employees who haven't been vaccinated with a mask violate or step into some privacy issues with employees Speaker 2: 02:30 In an ethical sense. Yes, it steps into some privacy issues, but probably not in a legal sense, although there's a caveat here in that the federal equal employment opportunity commission has said in guidance that was issued on May 28th, that it really is not a disability related inquiry that runs a foul of the Americans with disability act to ask for documentation of vaccination, nor is it an inquiry about an employee's genetic information, which would run a foul of the genetic information nondiscrimination act for a variety of reasons, by the way, a HIPAA wouldn't apply. Is there Speaker 1: 03:05 Going to be a legal way for employers or employees to challenge masking requirements? In the meantime, I mean, how is this new guidance going to be enforced? Speaker 2: 03:15 It's really not entirely clear how it's going to be enforced. The fact is that a lot of these guidelines that have been happening throughout this Corona virus have depended on the voluntary compliance of employers, employees, and even the general public, uh, and, uh, enforcement is going to depend on a clear understanding of folks. As far as a legal challenge, that's going to be very tough because administrative agencies, particularly in a public health crisis have broad latitude to issue rules, but the ambiguity is an issue with respect to the enforcement. The staff was directed to work very, very quickly to come up with robust. That was the word. One of the directors of the safety board used robust answers to frequently asked questions, to clarify some of the ambiguity that should give us a better idea of how these new rules, which are going to be revisited by the way, because the majority didn't like them in the first place with the next two months, how these new rules are going to be enforced while they are in effect. How does Speaker 1: 04:14 This updated guidance play into existing employer liability concerns Speaker 2: 04:19 Talking about employer liability, at least with respect to employees, you're really limited to workers' compensation. There are broader issues, of course, concerning the general public. Those ultimately are going to have to be worked out, uh, in the courts. The occupational safety and health standards board has a fairly limited, although broad in a sense jurisdiction over the workplace. Some of the issues that we're talking about with respect to liability depend on broader principles of law. Ultimately those are going to have to be worked out in the courts and that working out by the way is going to last a long time after this pandemic. That is why I have frequently said that the Corona virus has moved faster than the speed of law. If nothing else, what happened last night proves that, Speaker 1: 05:05 That in mind, how complicated will this be for an employer to determine whether the person standing on the other side of a cash register or a desk has been vaccinated? How complicated will this be for those who work in public facing careers? Speaker 2: 05:21 Okay. You've just asked the critical question as you always do. And that is that when you're talking about public facing, you are talking about people by definition whose documentation and employer will not have income and really cannot request. So the bottom line is because of that uncertainty of vaccination status by definition, everyone is going to have to keep their mask on. And these businesses, by the way, are free to require their, uh, public, uh, constituents such as customers and vendors to keep their masks on as well. Look, reports of the mask demise have been greatly exaggerated. If I could borrow a phrase from mark Twain Speaker 1: 06:01 And finally, you know, some have speculated, the governor Newsome might roll out further easing of restrictions. In the meantime, before the state is set to do away with most of its COVID related restrictions on the 15th, is this a possibility you think isn't Speaker 2: 06:15 That the fascinating thing, because the governor could actually override what the safety board did through executive action that was confirmed by, uh, OSHA staff, uh, last night and also the legislature could kick in. Although the legislative process is a lot slower. You're going to have to keep your eye on what's going on, uh, with the governor and particularly with the safety board, which again is expected to revisit what they did last night in the next couple of months. And in the meantime, the Corona virus rolls on and science at least is catching up the law. Not so much. I have been speaking Speaker 1: 06:50 With legal analyst stand partner at the San Diego from seltzer Caplan McMahon. And Vitech Dan Eaton. Dan, thank you so much for joining us. Good to be with you Jade.

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California employees will soon be able to skip masks in the workplace, but only if every employee in the room is fully vaccinated against the coronavirus.
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