Health officials in six Bay Area counties – Sonoma, Marin, San Francisco, San Mateo, Alameda, and Contra Costa – have issued orders mandating the use of face coverings in public areas like essential businesses, common spaces, and on public transit. The San Francisco, Alameda, San Mateo, and Sonoma county orders went into effect on April 17; however, enforcement of the San Francisco, Alameda, and San Mateo county orders will not begin until 8 a.m. on April 22, 2020.  The Contra Costa and Marin county orders went into effect at 8 a.m. on April 20, 2020.

Acceptable face coverings

Under these orders, individuals should not purchase N95 or other factory-made masks in order to meet the requirements.  Those masks should be reserved for health care workers.  Instead, individuals should use any cloth, fabric, or other soft or permeable material, without holes, that covers only the nose and mouth and surrounding areas of the lower face – even if homemade.    Examples of acceptable face coverings include a scarf or bandanna; a neck gaiter; a homemade covering made from a t-shirt, sweatshirt, or towel, held on with rubber bands or otherwise; or a mask, which need not be medical-grade.

Essential businesses must require use of face coverings for workers

The orders all require that workers working for essential businesses wear face coverings when working in areas with public access, or with anyone outside of their households.  Furthermore, workers who operate any public transportation or paratransit vehicle, taxi, or private car service or ride-sharing vehicle, must wear a face covering while driving or operating such vehicle, regardless of whether a member of the public is in the vehicle.

Essential businesses must require face coverings for customers and should exclude them if necessary

The orders require employers to not only post signs (or use other reasonable measures) to remind the public of the requirement to wear a face covering while inside or while waiting in line to enter the business, but also to prohibit anyone who is not wearing a face covering from entering.  If those efforts are not successful, the employer must not serve that person and seek to remove them from the premises as necessary.

Employers in Sonoma, Marin, San Francisco, San Mateo, Alameda, and Contra Costa counties are also required to either provide face coverings for their workers or allow employees to be reimbursed for the cost of obtaining their own face coverings.  Failure to comply with the requirements of the orders is not only a misdemeanor punishable by fine, imprisonment, or both under California law, but could also be grounds for civil liability, including violations of Labor Code section 2802 or negligence if a worker or customer falls ill.

Employers with workers in the Bay Area should contact their Reed Smith labor and employment attorneys to discuss the requirements and implications of the orders.