In response to the rapid spread of the COVID-19 Omicron variant, effective January 6, the LA County Department of Public Health revised its Health Office Order to include several notable updates, the most significant being a requirement that employers operating in cities and unincorporated areas in Los Angeles County—excluding Long Beach and Pasadena—provide select employees with high-quality masks when working indoors and in close contact with co-workers or members of the public.
The revised Health Office Order (hereafter “revised order”) requires that employers both provide and require covered employees in LA County—excluding Long Beach and Pasadena[1]—“to wear a well-fitting medical grade mask, surgical mask or higher-level respirator, such as an N95 filtering facepiece respirator or KN95, at all times while indoors at the worksite or facility.” The revised order defines covered employees as those “who work indoors and in close contact with other workers or the public.”
Tracking previous versions of the order, the revised order defines “close contact” as “less than six feet from” other workers or the public. This likely means that the new high-quality mask mandate will apply at a minimum to frontline workers in retail, manufacturing, and similar industries. The extent to which it will apply in other settings, such as office settings, is unclear at this time.
The revised order requires employers to comply “as soon as possible but no later than January 17, 2022.”
Beginning on July 28, 2021, LA County required all persons—regardless of vaccination status—to wear face masks in indoor public settings. The county also follows the universal indoor face mask requirements in the California Department of Public Health’s Guidance for the Use of Masks, currently in effect through February 15, 2022. The county’s face mask mandate provides a limited exception to wearing a mask at work when performing specific tasks that cannot feasibly be performed while wearing a mask.
Under the previous version of the order, unvaccinated workers who were unable to wear a mask while performing specific tasks were required to submit to COVID-19 testing at least twice per week, whereas fully vaccinated[2] workers who were unable to wear a mask while performing specific tasks were required to submit to testing once per week.
The revised order changes the testing protocols for the exception based on whether the worker is current on their vaccinations; workers who are unable to wear a mask while performing specific tasks and are either unvaccinated or “fully vaccinated and eligible for a dose of COVID-19 vaccine but have not yet received it” (i.e., workers eligible for a COVID-19 booster who have not yet received one) must submit to COVID-19 testing at least twice per week, whereas fully vaccinated workers who are unable to wear a mask while performing specific tasks and “who have received their booster dose of a COVID-19 vaccine or who are not yet eligible for a booster” are required to submit to testing once per week.
The revised order reflects the recent trend of more restrictive COVID-19 workplace health and safety measures, encouragement to get COVID-19 boosters, and a push for Californians to switch to high-quality masks in response to the Omicron variant surge.
Employers in LA County should swiftly take steps to implement the updated requirements, and consult counsel with any questions.
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If you have any questions or would like more information on the issues discussed in this alert, please contact any of the following Morgan Lewis lawyers:
Los Angeles/Century City
Jacqueline C. Aguilera
Kathryn T. McGuigan
Jason S. Mills
Orange County/Silicon Valley
Daryl S. Landy
[1] Long Beach and Pasadena have their own public health departments and orders, and typically have followed the LA County Health Officer’s lead throughout the pandemic.
[2] Under the revised order, as with previous versions, a person is considered “fully vaccinated” two weeks or more after receiving the second dose in a two-dose series (e.g., Pfizer-BioNTech or Moderna) or two weeks or more after receiving a single-dose vaccine (e.g., Johnson & Johnson/Janssen).