De-Masking Precautions

As we said in our last blog post, Cal/OSHA has updated its masking guidance to align with federal policy. For California employers, this means that fully vaccinated employees may go maskless indoors, so as long as the employer knows which employees are fully vaccinated. This italicized language is critical: It is an explicit requirement in the new Cal/OHSA regulations. But that raises a question: How does an employer know which employees are fully vaccinated?

The answer: By asking them.

Employers may do this in person– or, as we suggest, by distributing a survey to the employees.

Two caveats, however:

First, large California employers (i.e., those generating at least $25 million in revenue), must present a written notice–known as “Notice at Collection”—to their employees before collecting (or soliciting) any vaccine-related information from them. This notice informs employees of the (1) the sorts of personal information collected (such as first and last name and vaccination status); (2) the purposes and use for collecting such information (e.g., compliance with workplace health and safety regulations); and (3) the length of time that the employer intends to keep the information it collected from employees. Only after presenting the employee with this notice may the employer collect this sort of information from its employees.

Second, federal and California law deems any vaccination-related information as confidential. As such, employers should share or distribute employee responses with as few persons as possible and take reasonable safeguards to protect such information from unauthorized access. If employee responses, for instance, are uploaded electronically, the employer (at the very minimum) must password encrypt those responses. The confidentiality of employee responses also means that employers should not include employee responses in an employee’s personnel file.

While employers and employees can begin to see light at the end of the tunnel regarding de-masking, they should still proceed with caution before rescinding their mask mandates.

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This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between MNK Law and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material.