California employers confront varying health and safety guidance even as restrictions ease

With the widespread distribution of multiple vaccines and a growing list of counties reporting improvements in the number of COVID-19 cases, California is beginning to reopen. Additional counties, including San Francisco, San Mateo, Santa Clara and Los Angeles, have moved to the Yellow Tier, the least restrictive tier in California’s four-tiered, color-coded reopening system. If cases remain low, Governor Newsom plans to move away from the state’s tier system and drop nearly all COVID-19 restrictions on June 15, 2021. He announced that, also on June 15, California will adopt the CDC’s recent guidance allowing fully vaccinated people to stop wearing masks and social distancing in most situations. In the meantime, California employers continue to confront varying health and safety requirements, most significantly the evolving requirements of Cal/OSHA, and requirements that differ from county to county. This alert reviews key obligations for employers in San Francisco, San Mateo, Santa Clara and Los Angeles counties as they continue on the path to post-pandemic operations.

California’s Yellow Tier

Businesses in the Yellow Tier can reopen provided that they follow the capacity limits and implement safety measures required by state and local guidelines, including those under the Cal/OSHA Temporary Emergency Standards and state industry-specific guidelines. The Cal/OSHA standards presently require all persons to wear face masks indoors regardless of vaccination status.  Requirements additionally include mask-wearing in public and common spaces. Businesses must also follow any more restrictive county and city requirements.

San Francisco and San Mateo

On May 6, 2021, San Francisco County reopened indoor bars, indoor family entertainment activities, outdoor organized community sporting events, and indoor saunas and steam rooms, and loosened guidelines for a range of activities, including fitness, dining, offices, meetings and receptions. The city also loosened requirements around masks in outdoor settings with fewer than 300 people, including outdoor dining, consistent with the CDC and updated guidance released by the California Department of Public Health. Significantly, fully vaccinated individuals are exempted from total capacity limits in some cases, including for live performance events, meetings and receptions, sports and recreation, and offices.

While San Francisco’s reopening generally aligns with state guidance, there are some exceptions. For example, state guidance for Yellow Tier permits non-essential office spaces to reopen and recommends that telework be encouraged. San Francisco limits office spaces to 50 percent of normal maximum capacity, not including fully vaccinated personnel, and continues to advise that all businesses maximize remote work if possible. It also only permits indoor breakrooms to operate at 50 percent capacity (including vaccinated staff).

San Mateo County rescinded its earlier Order with county-specific social guidance and face covering requirements and aligned itself with state guidance, including the state’s Industry Guidance for operations in the Yellow Tier.

Los Angeles

Los Angeles County also jumped into California’s least-restrictive Yellow Tier this month. As a result, Los Angeles’ Department of Public Health revised its Reopening Safer at Work and in the Community Order, including updates to various industry-specific reopening protocols.

Significantly, Los Angeles’ reopening protocols for office worksites include several vaccine-related updates. In particular, fully vaccinated offices no longer have a COVID-19-related capacity limit, and non-fully vaccinated offices may now operate at up to 75 percent of maximum capacity where they cannot continue operations remotely.

In addition, the new protocols no longer require office-based businesses to adhere to physical distancing requirements (except where staff interact with visitors) so long as the business confirms and documents all employees, contractors and persons who enter the premises are fully vaccinated for COVID-19. Records of vaccination status must be retained, but copies of vaccination cards or other provider documentation of vaccination need not be retained. Face masks, daily screenings and compliance with Cal/OSHA requirements are still required for such businesses.  Failure to comply with the updated Order remains a crime punishable by fine, imprisonment or both. 

Santa Clara

As Santa Clara County similarly entered the Yellow tier, its Health Officer issued a new Order, effective as of May 19, 2021.  The Order lifts its prior mandate that employers maximize teleworking wherever possible, its limitations on gatherings, and its social distancing requirements when people are outside their place of residence. Social Distancing Protocols no longer need to be submitted to the County Public Health Department, but compliance with Cal/OSHA’s COVID-19 Emergency Prevention Regulations remains an obligation for most businesses.  The Order continues to require compliance with Santa Clara’s Mandatory Directive on Use of Face Coverings by all persons, its mandatory reporting when personnel contract COVID-19, and its strong encouragement to move operations outdoors where possible.

In addition, the Order includes several new requirements. Significantly, the Order mandates that businesses must ascertain vaccine status of all personnel within 14 days of the Order and obtain updated vaccination status for all personnel who were not fully vaccinated every 14 days thereafter.  The term “personnel” is broadly defined to include employees, contractors, subcontractors, independent contractors, vendors permitted on site, volunteers, and other individuals who regularly provide services on site.  The County’s FAQs clarify that this requirement applies to all workers who perform any work at a facility or worksite in the county and that employers are strongly encouraged, but not required, to determine vaccination status for all other personnel.

The Order does not, however, require personnel to obtain vaccination. Personnel who choose not to disclose their vaccination status must be treated as not fully vaccinated until vaccination status is ascertained. Relatedly, businesses must require all personnel who are not fully vaccinated to comply with the county’s Mandatory Directive on Use of Face Coverings and Mandatory Directive on Unvaccinated Personnel. Employers in Santa Clara must maintain records of employee vaccination status and follow DFEH guidance to treat any retained record of employee vaccination as a confidential medical record. Santa Clara has provided a sample form for obtaining employee verification.

Similar to Los Angeles’ Order, violation of or failure to comply with Santa Clara’s Order is a misdemeanor punishable by fine, imprisonment, or both. Significantly, businesses that fail to ask about and record vaccination status may be required to pay fines up to $5,000 per violation per day. As such, employers are urged to comply with these new requirements.

We will continue to monitor evolving health and safety requirements as California and its many counties adapt to changing conditions.

If you have any questions regarding California requirements or other legal issues concerning COVID-19-related restrictions for employers, please contact any member of the DLA Piper Employment group, your DLA Piper relationship attorney, or email us at CoronavirusEmployment@dlapiper.com.