Despite vaccines, California employers must follow rules

Indoors, masks can come off only when everyone’s vaccinated, Cal/OSHA says

As the state prepares to reopen fully on June 15, workplace regulators are taking a cautious stance to protect unvaccinated workers, saying that masks can come off only in settings where someone is working alone or where everyone has gotten a shot.

On Friday, the state’s Division of Occupational Safety and Health, citing underreported workplace outbreaks, proposed new rules that uphold indoor mask-wearing in settings where some workers are vaccinated and some are not, even as vaccination rates have soared. The proposal will be up for a vote at the June 3 meeting of the agency’s standards board.

Different mask policies for vaccinated and unvaccinated people “would be impossible to enforce … in a constant, consistent manner,” the agency said.

So rather than allowing vaccinated employees to opt out, all employees should wear masks when they are indoors if the status of all is unknown. The proposed rules are different for outdoor settings, where vaccinated workers can go unmasked but unvaccinated workers must continue to don face coverings when they can’t socially distance, according to the agency, known as Cal/OSHA.

Anyone who doesn’t wear a mask for medical or other reasons — but isn’t vaccinated or tested weekly at company expense — must stay 6 feet away from everyone else. Those social distancing rules would stay in effect until July 31.

The recommendation stands in contrast to a May 13 announcement by the U.S. Centers for Disease

Control and Prevention that people who are fully vaccinated against COVID-19 can safely enter many indoor settings, such as grocery stores and restaurants, without wearing a mask.

The new rules, if adopted, could motivate employers to mandate proof of vaccination. Then everyone who is vaccinated would work in one area, while those who are unvaccinated would work in another area, wearing masks or distancing.

Under state rules, employers are not required to gather vaccine information from their employees, but counties can impose stricter rules. For example, in preparation for the statewide reopening of businesses and activities next month, Santa Clara County last week announced that businesses would be required to determine their employees’ vaccination status.

“What OSHA is saying is that because they can’t tell who’s vaccinated and not vaccinated — and they can’t be assured that enforcement would take place — therefore they’re going to assume that everybody is potentially contagious, and you’re going to protect the unvaccinated by making everybody wear masks and socially distance,” said Dr. John Swartzberg, clinical professor emeritus of infectious diseases with the UC Berkeley-UCSF Joint Medical Program.

With this step, “OSHA is making everybody pay the price for people who choose not to get vaccinated,” he said. The conservation approach will also protect the small number of people who can’t get vaccinated due to allergies or who have been vaccinated but are immunocompromised and not fully protected, he added.

“But OSHA’s job is to protect the employees,” he said. “It will assure greater protection of workers indoors than if they had an approach where they just said ‘only unvaccinated people will wear masks,’ with no enforcement.”

While vaccinations are reducing the transmission of COVID-19, many California workers are not fully vaccinated and face potential exposure to infection on the job, according to Cal/OSHA. The agency pointed out that clusters and outbreaks have occurred in workplaces throughout the state, including in food manufacturing, agricultural operations and warehouses.

Cal/OSHA pointed out that data for the number of cases of COVID-19 infection and number of deaths attributable to workplace exposure to COVID-19 is not currently available, however, the numbers are likely substantial, particularly among essential workers, due to workers’ exposure to persons outside of one’s household, along with the close proximity between persons required in some industries.

Stephen Knight, of the Oakland-based worker-advocacy group WorkSafe, appreciated the more cautious approach.

“All workers, vaccinated or not, deserve protection in the workplace and the tools to exercise their rights,” he said.

The agency had been poised to adopt new rules on May 21 but decided to postpone its decision to further review federal regulations after a tense meeting where business lobbyists argued that masking and distancing regulations should be relaxed because of increasing vaccination rates and falling case counts, and worker advocates cautioned about the potential risks if safety mandates were lifted too soon.