Masking-up After the Mandate Ends: The Right to Mask at Work in Light of Gov. Newsom’s Latest EO

By AnaStacia Nicol Wright

On February 28th, 2022, Governor Newsom issued an Executive Order (EO N-5–22) which ended the indoor face mask mandate for California workers in the COVID-19 Emergency Temporary Standard (ETS). While being relieved from this mandate was a welcome change for many, it left other patrons, students and workers feeling very uneasy. However, the end of the mask mandate did not infringe on the right to request masks from employers.

Gov. Newsom’s order makes Cal/OSHA’s workplace protection rules consistent with the state’s general public health guidance, and has two components. One, it rescinds the rule (CCR, title 8, section 3205(c)(6)(A)) which requires employers to provide face coverings for all employees who are not fully vaccinated. The sections that require employers to ensure that face coverings are worn when employees are indoors or in vehicles also ended. Two, it extends the 90 day period before the ETS expires by an additional 21 days.

The current COVID-19 ETS remains in place until the middle of May 2022 and must be enforced in a manner consistent with the EO. This means that the ETS cannot be used to require employers to ensure their workers still wear masks. But it still allows workers the right to request face coverings from their employer.

The rule prohibits employers from preventing their employees from wearing a face covering (Title 8, section 3205(c)(6)(G)) even when sections 3205.1–3205.4 does not require it. So, all employees still have the right to wear a face mask at their choosing. Their employer could only infringe on this right if their face covering would interfere with the safe operation of equipment or otherwise create a safety hazard.

Furthermore, the ETS requires employers to provide face coverings to an employee who requests it (title 8, section 3205(c)(6)(H)). Thereby obligating employers to grant an employee’s request for a mask. Moreover, employers compliance with this section does not depend on a worker’s vaccination status. And it also requires any employee requested face coverings be provided by the employer at no cost to the employee and regardless of vaccination status (CCR, title 8, section 3205(c)(5)(J)). Thus vaxxed and unvaxxed employees must be provided a proper face covering by their employer upon request.

In short, the end of the mask mandate does not restrict your right to mask up at work. Nor does it relieve employers from making masks available upon request.