Masks on/masks off — yet again

Now that the courts have blocked the Biden Administration’s COVID-19 vaccination or weekly testing requirements for employers of 100 or more employees and for federal contractor employers, and now that California has largely removed its masking requirements, is masking and/or proof of vaccination finally a thing of the past? This article explains where masking or vaccinations may continue to be part of the California workplace.

California law continues to require masks for workers in public transit, health care, and long-term care/adult care/senior care settings.

CalOSHA continues to require masking after a substantial workplace COVID-19 outbreak.

No other industries are legally required (for now) to impose masking or vaccination requirements.

Employers can adopt their own masking and vaccination requirements. For example, the City of San Francisco and the University of California have imposed mandatory vaccination requirements.   

If an employer wants to impose its own mandatory vaccination or masking rules the first question is, does it have the right to do so under the Union Contract’s management rights clause? A weak management rights clause creates grounds for a demand to bargain. The Union can always demand to bargain, whatever the management rights clause says, but in most cases, the employer can bargain to impasse over a mandatory vaccination or masking clause and impose their proposal after bargaining is exhausted. 

Why haven’t more employers imposed vaccination or masking requirements? Because (1) finding qualified workers is hard; (2) the transmission rate for COVID-19, at least for now, appears to be on the wain because of vaccinations and the number of people who have already had COVID; and (3) neither federal nor state law is forcing them to undertake the hassle and expense.

But, with COVID-19, expect the issues discussed here to change in another few months.