So much for the summer of freedom. As anticipated, the seven Bay Area counties of San Francisco, San Mateo, Alameda, Santa Clara, Contra Costa, Marin, and Sonoma plus, the city of Berkeley, announced today that they are now mandating that everyone — regardless of vaccination status — wear masks indoors as the Delta variant of COVID-19 spreads in the region.* The new requirement takes effect Tuesday, August 3 at 12:01 a.m. The joint press release is here.

Per the various health orders, Bay Area health officials recognize that “vaccines remain the most powerful tool in the fight against COVID-19, including the Delta variant.” Notwithstanding, “indoor masking is a temporary measure that will help us deal with the Delta variant, which is causing a sharp increase in cases, and we know increases in hospitalizations and deaths will follow. When we all wear face coverings indoors, we are protecting our fellow residents and helping our healthcare workers.”

Key Provisions in the Orders

  • Unless an individual is otherwise exempt, masking is required indoors except when working in a closed room or office alone or performing an activity that cannot be done without a mask (eating, etc.)
  • Masking is recommended outdoors in crowded areas
  • Businesses must enforce the new mask requirement for all personnel and members of the public entering facilities, regardless of vaccination status; signage is required:
    • Signage for employees: All businesses and governmental entities are required to post signs in employee break rooms or common areas encouraging employees to get vaccinated and providing links to additional information.
    • Signage for patrons: All businesses and governmental entities are required to conspicuously post signage reminding individuals of COVID-19 prevention best practices to reduce transmission.
  • As usual, the enforcement section cites to fines or imprisonment for violations
  • Notably, Santa Clara County included several recommendations applicable to all businesses and governmental entities. In addition to the new mask requirement, the Health Officer suggested:
    • Implementing mandatory vaccination requirements for all personnel;
    • Moving operations / activities outside where possible;
    • Prohibiting unvaccinated personnel from travelling for work to places where there are elevated rates of COVID-19; and
    • Requiring unvaccinated personnel to obtain frequent testing.

More Stringent than State Guidelines

The new local mask requirements are more strict than the brand new face covering guidance issued by the California Department of Public Health on July 28 (which recommends but does not require face coverings indoors for vaccinated individuals, in line with the CDC’s updated face covering guidance), and Cal/OSHA’s June 17 amended ETS (which allows fully vaccinated employees to forgo masks and social distance in many circumstances). As such, employers in the listed counties have some “to dos” in the next few hours: (1) update mask policies; (2) post clearly visible signage regarding masking rules; and (3) require all employees and patrons to wear masks in indoor settings.

What’s Next for California Employers?

Given the headlines in the last week — from federal, state and municipal agency vaccine mandates and incentives to some of the largest companies in the tech, financial services, education, and healthcare industries requiring employees to be vaccinated to come into work — it is not at all surprising that masking is back in some California counties. What will be interesting is to see if any other California counties pick up on Santa Clara’s recommendation in its Health Order urging employers to implement mandatory vaccination policies. We suspect this trend to continue in certain pockets of the country. For assistance in building out your legally-compliant COVID-19 policies, read more here and contact your Baker McKenzie employment lawyer.

*Los Angeles, Sacramento and Yolo counties already have mask mandates.