Update May 20: This blog has been updated to reflect current guidance about Bay Area face covering requirements.
Bay Area Counties have issued Health Orders mandating that persons wear face coverings when interacting in public. Each county’s orders impose obligations on businesses as well as the general public. The orders took effect between April 17 and April 22, 2020. No definitive end dates are provided at this time.
Five counties have issued almost identical orders: Alameda, Contra Costa, Marin, San Francisco, and San Mateo. Sonoma County issued a unique Order. Santa Clara County's shelter-in-place order requires residents to wear face coverings when at a business or on public transportation, but the County declined to issue a broad face covering order, citing a lack of resources for enforcement. Some cities have issued their own orders, including Fremont. For information on the Los Angeles Order, see our advisory here.
Alameda, Contra Costa, Marin, San Francisco, and San Mateo Counties
All essential businesses, and entities or organizations with workers engaged in essential infrastructure work, minimum basic operations, or essential governmental functions must require employees, contractors, owners, and volunteers to wear a face covering at the workplace or when performing work if they are:
- Interacting in person with any member of the public;
- Working in any space visited by members of the public, such as, by way of example and without limitation , reception areas, grocery store or pharmacy aisles, service counters, public restrooms, cashier and checkout areas, waiting rooms, service areas, and other spaces used to interact with the public, regardless of whether anyone from the public is present at the time;
- Working in any space where food is prepared or packaged for sale or distribution to others; and/or
- Working in or walking through common areas such as hallways stairways, elevators, and parking facilities; or in any room or enclosed area when other people (except for members of the person’s own household or residence) are present.
In addition, businesses also must take reasonable measures (such as posting signs) to remind customers and the public who enter their facility of the requirement that they wear a face covering, and must take all reasonable steps to prohibit any member of the public who is not wearing a face covering from entering, must not serve that person, and must seek to remove that person.
Exceptions to Business Obligations
There are exceptions to the requirements for business operations, including either when the employee can show that a medical professional has determined that wearing a face covering may pose a risk to the employee for health-related reasons, or when wearing a face covering would create a risk to the person related to their work as determined by regulators or workplace safety guidelines.
These orders also do not cover healthcare operations, which are subject to their own regulations regarding face coverings.
Acceptable Face Coverings
Examples of acceptable face coverings cited in the orders include:
- A scarf or bandana;
- A neck gaiter;
- A homemade covering made from a t-shirt, sweatshirt, or towel, held on with rubber bands or otherwise; or
- A mask, which need not be medical-grade.
A face covering may be factory-made or handmade and improvised from ordinary household materials. Any mask that incorporates a one-way valve is expressly not a face covering and is not to be permitted because this type of mask permits droplets to be released, putting others at risk. Face coverings not disposed of after each use should be cleaned frequently, and extra ones should be available so that a clean one is readily available.
General Requirements of the Public
The orders also describe requirements that the public must follow. These obligations fall on the public, not on businesses.
All members of the public must wear a face covering when they are:
- Inside of or in line to enter any essential business.
- Inside or at a location or facility engaging in minimum basic operations or are seeking/receiving essential governmental functions.
- Engaged in essential infrastructure work.
- Obtaining services at healthcare operations.
- Waiting for or riding public transportation.
Additionally, drivers or operators of public transportation vehicles (broadly defined to include ride-sharing vehicles) must wear a face covering while driving, regardless of whether a member of the public is in the vehicle.
Face coverings are recommended but not required while engaged in outdoor recreation (such as walking, hiking, bicycling or running), but social distancing requirements must be followed. Further, children ages 12 and younger are not required to wear a face covering, and children ages two and younger must not wear a face covering.
Sonoma County Order
The Sonoma County Order is less detailed than the other Bay Area counties. The Order requires that “[a]ll persons shall wear facial coverings before they enter any indoor facility besides their residence, any enclosed open space, or while outdoors when the person is unable to maintain a six-foot distance from another person at all times.”
Additionally, the Order requires that businesses continuing to operate (and require employees to leave their residences) “shall ensure” their employees comply with the Order by:
- Supplying facial coverings;
- Ensuring that employees have access to facial coverings; or
- Ensuring that employees are using their own facial coverings.
Employers may refuse admission or service to any customer or visitor who fails to wear a facial covering.
While employers are not specifically required to provide face coverings under the orders, Labor Code section 2802 requires employers to indemnify employees for “necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.” This has been an active area of litigation (more details available here), and while an employer’s specific approach to providing (and laundering) face coverings may vary based on company culture and size, all employers are encouraged to seek advice concerning compliance with Labor Code 2802 when determining how they will comply with these orders.
Employer COVID-19 Resources
Employers are encouraged to consult counsel as they confront the unique challenges of managing a workforce during the COVID-19 pandemic and as they consider policy changes necessary to comply with new legislation on the federal, state, and local levels.
DWT will continue to provide up-to-date insights and remote access events regarding COVID-19 concerns. For the most recent developments visit www.dwt.com/COVID-19.
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