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Mask on, Mask Off? San Francisco Again Revises its Rules for Universal Face Coverings

On January 26, 2022, the City and County of San Francisco released an updated Health Order No. C19-07y (the “Updated Health Order”), which addresses a number of rules issued in an effort to combat continued spread of COVID-19, including changes in exemptions to the universal indoor mask mandate.  Specifically, effective February 1, 2022, the Updated Health Order renews a previously-suspended masking exemption for vaccinated workplaces, with a few significant changes.

First, under the revised mask exemption, only employees who are “Up to Date” on vaccination (see below for definition) may go unmasked in the workplace, assuming the other conditions for the exemption are met.  Other individuals must wear masks at all times, subject to limited exceptions (e.g., alone, while eating).  Further, consistent with the Cal/OSHA definition of an outbreak, this exemption only applies if there have been no outbreaks (currently defined as three or more COVID-19 cases in an “exposed group” within a 14-day period) in the past 30 days.

Second, the exemption may only be used if everyone in the workplace is either “Up to Date” on vaccination, Fully Vaccinated (see below for definition), or has a legally permissible excuse for being unvaccinated (which is specifically limited to religious or medical exemptions).  The previous mask exemption did not make any exceptions unless all persons present were fully vaccinated.  However, under the Updated Health Order, if an individual is unvaccinated for a reason other than a religious or medical exemption; or if an unvaccinated individual does not comply with the testing requirements (described below), employers may not implement the mask exemption and all individuals entering the workplace must wear a mask.  In addition, for employers to implement the mask exemption, no visitors may enter the workplace, among other requirements.

In greater detail, here are the three categories of vaccination referenced above: (i) “Up to Date” on Vaccination means two weeks after completing entire recommended initial vaccination series with an FDA authorized vaccine and one week after receiving a booster; (ii) “Fully Vaccinated” means two weeks after completing entire recommended initial vaccination series with FDA authorized vaccine; and (iii) unvaccinated means neither Up to Date nor Fully Vaccinated, but tested twice a week at least three days apart.

Individuals entering the office space on an intermittent or occasional basis for short periods of time (e.g., package couriers) do not need to provide proof of vaccination, but must wear a mask at all times.  Occasional intermittent visitors do not impact the exemption, but if a visitor is present in the workplace beyond an intermittent basis, all individuals in the workplace must wear a mask.

San Francisco employers are encouraged to promote the use of “Well-Fitted” masks—a well-fitting N95, KN95, NF94, or a surgical mask worn with a cloth mask over it to increase fit.  Cloth masks, scarves, ski masks, single layers of fabric, or masks with unfiltered one-way exhaust valves are not recommended.

Employers may review the revised FAQs for COVID-19 Health Order C19-07y for further clarifications. In addition to the changes to universal masking rules, the Order addresses permissive treatment of individuals who are unvaccinated due to religious beliefs or qualifying medical reasons by certain businesses required to check for proof of vaccination, such as restaurants and gyms. It also revises rules for indoor events attended by 500 or more people (Mega-Events) and sets for new requirements for vaccination and booster shots for those employed in high-risk and higher-risk settings.  San Francisco employers should consult with counsel prior to revising any COVID-19 related policies and procedures to ensure compliant implementation of any changes aligned to the revised Health Order.