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LATEST UPDATES: Tracking COVID-19 | Vaccines | Racial Justice

Most California Workers To Stay Masked Under Revised Rules

Cover image for podcast episode

PHOTO BY ROLAND LIZARONDO

Above: A worker making pasta at Cesarina in Point Loma with a sign requiring face covering on the premises, July 21, 2020.

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. Plus, CapRadio’s PolitiFact California reporter Chris Nichols fact-checked Kamala Harris’ statements on small business closures. And this weekend in the arts: Cataphant at Swish Projects, Word Up in-person, cello virtuoso Zlatomir Fung livestream, a folk performance from the Philippines, Trolley Dances and Omar Pimienta at Lux.

Speaker 1: 00:01 To mask or not to mask in the work.

Speaker 2: 00:03 The Corona virus has moved faster than the speed of law. If nothing else, what happened last night proves that

Speaker 1: 00:10 Potential legal challenges to Callow she's new guidance. I'm Jade Hindman. This is Kate PBS midday edition. Small business disclosures are having a big impact on the economy and workforce.

Speaker 3: 00:30 Let's just be clear about where we are. Half of America's workforce works for small business or owns a small business. Um, sadly during the course of the pandemic one-third of our small businesses have closed

Speaker 1: 00:42 And here local art shows in our weekend preview that's ahead. On mid day edition, 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 we go 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?

Speaker 2: 01:51 Particularly 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 guidelines, 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: 02:24 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 yet? There

Speaker 2: 02:33 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 provide unvaccinated, uh, employees and appropriate face, uh, covering, uh, 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 of a wildfire season, as well as healthcare workers.

Speaker 1: 03:20 Does that requirement to provide employees who haven't been vaccinated with a mask violate or step into some privacy issues with employees

Speaker 2: 03:31 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 we're going to follow the genetic information nondiscrimination act for a variety of reasons, by the way, a HIPAA wouldn't apply.

Speaker 1: 04:06 Is there 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: 04:15 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, uh, to work very, very quickly to come up with robust. That was the word. One of the directors of the safety board used robust, uh, 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.

Speaker 1: 05:14 How does this updated guidance play into existing employer liability concerns?

Speaker 2: 05:19 Well, when you're talking about employer liability, at least with respect to employees, you're really limited to a 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 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: 06:06 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: 06:21 But James 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 a mask demise have been greatly exaggerated. If I could borrow a phrase from mark Twain

Speaker 1: 07:02 And finally, you know, some have speculated that 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: 07:16 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.

Speaker 1: 07:49 I've been speaking 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 vice-president and former California, Senator Kamala Harris recently claimed one-third of all small businesses have closed during the pandemic camp radios, Chris Nichols, fact-checked that and other statements. And this week's, can you handle the truth segment, Chris?

Speaker 4: 08:25 And where did vice president Harris make this claim? She

Speaker 5: 08:29 Made it during a TV interview that aired this week on M NBC. And she was talking about the, the pandemic has taken on small businesses. This is

Speaker 3: 08:40 One of my areas of focus. I care so deeply about this, which is one let's just, let's just be clear about where we are. Half of America's workforce works for small business or owns a small business. Um, sadly during the course of the pandemic one-third of our small businesses have closed

Speaker 4: 08:57 One third of all, small businesses have closed. Wow. So is that correct?

Speaker 5: 09:02 It really is a stark figure. And we found a couple of sources that do support her statement, a spokesperson for Harris pointed to a Harvard university project called the economic tracker. And that's an online platform that provides data about real-time economic trends. It uses things like financial transaction activity to determine whether a business has closed. And as of this week to tracker shows, there are 37% fewer small businesses open nationwide compared with a couple of months before the pandemic. And that share was slightly higher in California at 39%.

Speaker 4: 09:43 Where else did you look to fact check this statement,

Speaker 5: 09:46 Small business round table, which advocates for small businesses published a survey in may of last year that also supports this claim at that time 31% of small businesses reported that they were not operating. And those fairing the worst at that time were hotels, restaurants, cafes, and similar businesses.

Speaker 4: 10:07 Did you find any sources that contradicted what Harris said? The fed

Speaker 5: 10:11 We'll reserve board published a study in April that offers a slightly different, but more hopeful perspective. It found there certainly were a lot of business closures over the past year, but fewer than expected ended up as permanent business closure.

Speaker 4: 10:27 Finally, Chris PolitiFact checked out a widely shared, and we should note inaccurate social media posts about vice president Harris and president Joe Biden. What did it have to say?

Speaker 5: 10:39 That's right. This was a Facebook post that claimed Biden and Harris quote did not say one word about American troops veterans or fallen military on Memorial day and Randall. That post is simply incorrect. The post points, two tweets that Biden and Harris sent out a couple of days before the holiday that do not mention the military, but both over the weekend made statements honoring military members and their families Biden and Harris participated in a reef Lang ceremony at Arlington national cemetery and Biden spoke at a Memorial day ceremony in Delaware

Speaker 6: 11:19 Last year in those early dark days of the pandemic. Joel, and I didn't want to let them Memorial day pass like every other day. And there was no event here where we came to lay a wreath at the Plaza. It was the first time we did any sort of events since the lockdown had begun in March, because we were determined, determined to honor the fallen

Speaker 5: 11:40 In the end, PolitiFact rated the claim on Facebook as false.

Speaker 1: 11:46 That was cap radios. Chris Nichols speaking with anchor Randall white full versions of all fact checks are at cap radio.org/politifact. You're listening to KPBS midday edition. I'm Jade. Hindman this weekend in the arts. We have a new exhibition of art that takes on the Tijuana river valley. The first on-site event at the old globe, since COVID began a cello virtuoso on a livestream and the return of trolley dances. Joining me with all the details is KPBS arts editor, Julia Dixon Evans. Julia. Welcome.

Speaker 7: 12:28 Hi Jane. Thanks for having me.

Speaker 1: 12:30 Okay. So first up a new regional artist at Lux art Institute opens his exhibition tonight, which is inspired by the study of borders and waterways like the Tijuana river. Tell us about this show.

Speaker 7: 12:43 Yeah, this is Omar P manta, and he's a cross-border artist having grown up in Tijuana and he studied and worked in San Diego. He does an interdisciplinary art practice that kind of emerging of different forms. And in this exhibition, sedimentary there's photography sculpture and mixed media often together like sculptural lettering set on top of landscape photography at the Tijuana river or the valley in natural spaces that are around that area. And this particular river is it's heavily politicized. It's charged with a lot of geographic and biological purpose, as well as political and social and the language parts of his art really make us think about that. Some of the writing on his photographs is things like time is foreign or landscape is a social construct. And my favorite is there's a field of nasturtiums with the words, this is concrete over it. And he's also a poet and has published a poetry collection. That's also called sedimentary and tonight at the opening, he'll read some of that poetry that outside and the Lux garden. And they'll also be an artist talk and a DJ set too. This is also your last chance to see best Sierra comes exhibition up there at Lux as well.

Speaker 1: 13:59 Pinned me into exhibition at Lux. Art Institute opens tonight with the reception from six to 9:00 PM. Viewing appointments are also available Saturday from two to 5:00 PM. Now to the theater, the old globe is hosting their first onsite event in over a year. Tell us what their word up program will look like and how we can attend.

Speaker 7: 14:20 Yeah, so this is a free event and it's in their outdoor Copley Plaza space just outside of the theater. And it will also be word app, which is hosted by Laura [inaudible]. And it's like a sort of casual, low pressure participation thing where they bring in creative experts that are from in or out of the theater world to talk about and collaborate, live on whatever their particular craft is. This weeks is hip hop and freestyle rap with hip hop, artists, veil and rapper, Rick scales make available, start things off at five o'clock with a pre show DJ set. And the old globe suggests dancing, which I, I don't know if everybody's quite ready for that level of social awkwardness. And then lady Caroline's pub will also be open at five. Then at five 30, they'll dig into the art of freestyle rap and hip hop performance. Um, both of these artists are really amazing. Here's a track from Rick scales, project 18 scales. This is called anything you want.

Speaker 8: 15:31 [inaudible] provided. I make them jams his body shaking like dang tastes this flavor. Cool. Got him. Weapon dollar for papers to make up a Juul, just to give him this new addition with Vicky

Speaker 1: 15:43 That's anything you want by Rick scales, project 18 scales, Rick scales and Mickey veil will be at the outdoor Plaza at the old globe for word up doors open at five. And the program starts at five 30 tonight. Trolley dances, San Diego, his beloved site-specific dance program is also back this weekend. Tell us what we can expect there.

Speaker 7: 16:05 Yeah, they had to cancel last year's performance. Of course, and they just streamed a collection of clips from previous shows. So it's really great to get back to the actual trolleys. They'll do a shorter version, just three stops in four dances with new site specific choreography from some trolley dances favorites like Monica bill Barnes and the return of Jean Isaacs. If you get tickets to the tour, you'll start at the 70th street. Trolley stopped for the first performance. Then with your masks on you'll take a short ride to some nearby stations for the other dances. And if you want to try your luck at just walking up to peak the performances kind of audit style, there'll be at 70th street. Then the San Diego state station for two performances, and then to Grandville for that final dance. San Diego dance theater does caution that there is limited room for walk-ups. So your safest bet is to just get a ticket in advance. Trolley

Speaker 1: 17:04 Dances takes place this weekend with performances on Saturday and Sunday, starting at 70th street trolley station at 10 30, 1130, 1230 and one 30 each day. Uh, now let's say you're, you're not ready to go to a live performance yet. Are there any new concerts available to just live stream?

Speaker 7: 17:22 Yeah. LA Jolla music society will live stream an outdoor concert of cello and piano music on Sunday. And even if you want it to go see this one live, you couldn't because all of the in-person shows are sold out. They're bringing in young cello virtuoso so that Amir Fung and pianist Richard food to perform three works there's sonatas from Beethoven and foray. And then this really mysterious dance piece called duo for cello and piano by American composer, Arthur Berger,

Speaker 1: 18:10 That's duo for cello and piano by Arthur Berger. You can hear it performed by his Latin Amir fun on cello and Richard Fu on piano and alive stream concert. This Sunday at 3:00 PM for details on these and more arts events or to sign up for Julia's weekly KPBS arts newsletter, go to kpbs.org/arts. I've been speaking with KPBS arts editor, Julia Dixon Evans, Julia, thanks and have a great weekend.

Speaker 8: 18:40 You too, Jane [inaudible].

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KPBS Midday Edition is a daily talk show hosted by Maureen Cavanaugh and Jade Hindmon, keeping San Diegans in the know on everything from politics to the arts.