In Another Reversal, California Regulators Withdraw Controversial Workplace Mask Rules

California's workplace regulators have withdrawn a controversial pending mask regulation while they consider a rule that more closely aligns with Gov. Gavin Newsom's promise that the state will fully reopen from the pandemic on Tuesday.

The California Occupational Safety and Health Standards Board's revised rule, adopted last week after it was initially rejected, would have allowed workers to forego masks only if every employee in a room is fully vaccinated against the coronavirus.

That contrasts with the state's broader plan to do away with virtually all masking and social distancing requirements for vaccinated people in concert with the latest recommendations from the Centers for Disease Control and Prevention.

The board's decision late Wednesday to withdraw that worksite rule before it goes into effect allows the board to consider changes at its June 17 meeting and potentially have them go into effect by month's end.

But some business leaders on Wednesday kept up their pressure on Newsom to override the board.

"After the confusion and lack of clarity on reopening guidelines at the Cal/OSHA hearing tonight, the statewide business community must once again request the governor issue an Executive Order before June 15 to provide all employers with the consistency and certainty in guidelines," Rob Lapsley, president of the California Business Roundtable, said in a statement after the vote. That, he said, "will be the catalyst for a full economic reopening and create a powerful incentive to get even more Californians vaccinated."

The goal of the unanimous vote, said board Chairman David Thomas, is to change the workplace regulation "so that it matches up with the CDC and the California Department of Public Health, so that we're all on the same page. That's what this is about, so we're not out of step with everybody else."

The safety board's staff was not specific on what changes it will recommend next week, other than it will try to more closely conform the workplace rules with public health guidelines.

But Eric Berg, deputy chief of health for Cal/OSHA, said the public health guidelines generally allow anyone who is vaccinated to skip wearing a mask indoors. Under those rules, he said, "a vaccinated person would not have to wear a mask at work."

The reversal came after State Health Officer Dr. Tomás Aragón reiterated to board members at a hastily scheduled special meeting that the state next week will end most masking rules for people who are vaccinated, while continuing to require face coverings for unvaccinated people in indoor public settings and businesses.

Exceptions where everyone must remain masked include public transit, indoor school classes, in health care and correctional facilities, and in places like homeless shelters and cooling centers, Aragón said. Individual businesses are also free to require everyone to remain masked under the general rules, he said.

'Employers Cannot Plan'

Helen Cleary, director of the Phylmar Regulatory Roundtable, a coalition of large businesses with major California operations, was among numerous business representatives urging the board to conform its rule with public health requirements.

"Employers cannot plan with this high level of uncertainty," she said. "We are disappointed and frustrated with the confusion, the process, the substance and the lack of leadership."

The workplace board's more restrictive approach puts Newsom in an awkward position as he battles a pending recall election, though he was reluctant to override a board that he appoints.

"The public doesn't draw a distinction between this board and the rest of the Newsom administration," Michael Miiller, California Association of Winegrape Growers government relations director, told board members before the vote. "What they hear is the Newsom administration say that wearing masks at work may be here to stay."

Pressure on the board built before the meeting when a dozen business groups, including the California Retailers Association and organizations representing manufacturers, farmers, tourism interests and other industries, sent a letter to Newsom asking him to rescind the board's regulations.

Requiring masks unless all are vaccinated in a workplace would "create yet another barrier to rehiring and reopening" at a time when "we need to be providing incentives to bring people back," they said. Moreover, they said requiring masks for people who are fully inoculated could lead the public to believe the vaccine isn't really effective.

'Outbreaks Are Still Occurring'

Board member Laura Stock said it is important to keep protecting employees who don't have a realistic choice but to go to work.

For instance, state data show that in the retail sector in the last 30 days "there were 70 outbreaks, more than two a day," said Stock, who directs the Labor Occupational Health Program at UC Berkeley. "Outbreaks are still occurring."

The idea of a continued workplace mask mandate has also been broadly supported by a range of unions representing teamsters, nurses, machinists, utility workers, engineers and school employees. Many advocates have stressed that the pandemic is not over, and that low-wage front-line workers have been disproportionately impacted.

As COVID-19 cases, and deaths, spiked across the state last fall and winter, Cal/OSHA received thousands of worker complaints related to the virus. Yet the vacancy rate for field inspectors doubled to 26% as of late February, compared to 13% two years earlier.

"The workplace is not the same as deciding to go to a dinner party or the gym or go to a movie," said Maggie Robbins, an occupational health specialist with Worksafe Inc., an Oakland-based worker-advocacy group. "There’s a lot of work to be done before we have a substantially immune population where we can relax more of the controls."

Liz Ortega, executive secretary-treasurer of the Alameda Labor Council, told KQED last week the workers she advocates for have put themselves at risk for the last year and a half, "making sure the rest of us could survive during the pandemic."

"We’ve spent the last 18 months fighting for and winning worker safety, hazard pay, and sick leave," Ortega said in an email. "We aren’t going to now criticize Cal/OSHA for proceeding with caution."

Business groups also want the board to withdraw its proposal to require employers to start providing the most effective N95 masks for voluntary use by employees who work indoors or at large outdoor events and are not fully vaccinated, starting July 31. That would be costly and compete with the needs of health care workers, they said.

But "the N95 is the one that checked all of those boxes" for safety, Stock said.

The Cal/OSHA board's regulations apply in almost every workplace in the state, including workers in offices, factories and retail. Its pandemic rules apply to all employees except those working from home or where there is a single employee who does not have contact with other people.

Even prior to Wednesday's vote, board members emphasized that their revised rules were temporary, and they appointed a subcommittee to continue working on revisions.

This post includes reporting from Don Thompson of The Associated Press and KQED's Matthew Green.