Yet again, business owners and their staff are expected to be the mask-police against the public amidst California’s Statewide Mask Mandate. The California Department of Public Health (CDPH) requires masks to be worn, with or without vaccination, in all indoor public settings starting December 15, 2021, through January 15, 2022, to mitigate the spread of COVID-19’s new variant, Omicron. 

The exemptions to the mandate are the following:

  1. Outdoor settings/areas
  2. Children under two years of age
  3. Persons with medical conditions or disabilities who cannot remove a mask without assistance
  4. Persons who are hearing impaired or those who have trouble communicating without “lip reading”
  5. Persons with an occupation that prevents masks for safety purposes

So, what does this mean for everyone’s day-to-day activities? 

It is not only a burden for already struggling business owners but also unrealistic in its timeframe. Businesses have had to change their policies, procedures, signage, and training once again. Strangely, the period of enactment only lasts one month. 

The mask mandate will certainly increase friction between businesses, employees, and customers during one of the busiest retail seasons of the year. Since wearing a mask has become a political statement, business owners and employees have struggled to enforce mask requirements. News outlets and social media postings have shown angry customers refusing to wear masks, arguing with employees, and debating with staff regarding constitutional rights. This coupled with the recent message that governing entities have been publicizing regarding the vaccine, seem to charge the situation even more. For months our governing agencies have enticed individuals to get the vaccine by offering fully vaccinated individuals the opportunity to go about daily life without a mask. This change in direction has caused confusion among those who are fully vaccinated. Because of this, fully vaccinated individuals may be less inclined to obey store policies and wear a mask. Despite the mandate’s numerous challenges, businesses are not shutting down.

Local Law Enforcement to Enforce The Mandate?

The California Department of Public Health (CDPH) does not have any formal enforcement procedure for the Statewide Mask Mandate. Instead, local law enforcement agencies are entrusted to enforce the mandate for about a month. Fortunately, local police departments are heavily engaged, dealing daily with criminal activities, emergency responses, area patrols, and active investigations. Significantly, during the holidays, crime rates rise for various reasons factors. Experian’s survey exhibited an increase of 8% in identity theft during Christmas and Cyber Monday. Between Thanksgiving and New Year’s Day, the Alcohol Monitoring System reported that more than 450,000 DUI offenders increased the amount of alcohol consumed during the season. 

Unmasked individuals indoors seem like a trivial matter for Officers to prioritize. Governor Newsom and CDPH know full well that multiple law enforcement agencies (i.e., Orange County, Los Angeles, and Riverside Sheriff’s Department) have publicly spoken out against the mandate due to limited resources – they too do not expect thorough enforcement.

Expectation From Law Enforcement Varies Between Counties 

If businesses refuse to abide by the mandate, the public may call for law enforcement. Whether they agree with the mandate or not, Officers are required by law to respond to each call for service. Most likely, the Officer will only issue a warning to the business and advise the public to file a complaint with their county’s health agency.

On the other hand, if a business chooses to enforce the mask mandate and its customer refuses to comply, the customer is committing a misdemeanor crime. In the event a customer does not comply with business policy, the following consequences may apply: 

  1. California Penal Code, § 415: Disturbing the Peace

Any person will be punished by imprisonment in the county jail (not more than 90 days), a fine (not more than $400), or both if: (1) a person unlawfully fights in a public place or challenges another person in a public place to fight, (2) a person maliciously and willfully disturbs another person by loud and unreasonable noise, or (3) a person uses offensive words in a public place likely to provoke an immediate violent reaction.

  1. California Penal Code § 602: Trespass

Any person refusing or failing to leave the land, real property, or structures belonging to or lawfully occupied by another upon being requested to leave by (1) law enforcement officer at the request of the owner, owner’s agent, or a person in lawful possession, or (2) the owner, the owner’s agent, the person in lawful possession.

Without Enforcement, Why Mandate?

CDPH admitted the mandate’s only goal is to encourage the public to wear masks and inform them of the rising threat of the Omicron and Delta COVID-19 variant. 

Though the mandate’s enforcement seems dull, California Occupational Safety and Health Administration (Cal OSHA) are still issuing citations to businesses that do not comply with their regulations as it pertains to the workplace. Cal OSHA has been making unannounced visits to companies known to have occasional safety hazards based on complaints and past records. According to the severity and number of violations, citations can range from $2,000 to $50,000.  

Businesses Must Expect The Unexpected

As businesses try to slowly return to normalcy, the reality is unpredictable. The State’s Constitutional power seems limitless in its ability to mandate specific conducts from indoor masking to “forced” vaccinations despite religious or personal beliefs. Similar to California’s mask mandate, the CDPH and the Governor’s Office can extend or change COVID-19 regulations in as quickly as two days. 

Recently, in Dr.A v. Hochul, the Supreme Court blocked a request to exempt religious groups from New York’s statewide vaccine mandate. Several individuals, including healthcare workers, refused to obtain vaccinations due to the fact that cell lines originating from fetuses were used in the testing of the vaccine. Plaintiffs, in this case, argued that New York’s mandate violated the right to exercise religion by broadening medical exemptions to the vaccine while removing religious exemptions. This recent ruling is a clear embodiment of the country’s battle against COVID-19: the Constitutional liberties bestowed upon us (i.e., freedom to exercise religion) may be interrupted or postponed for safety and security. 

What This Means For Businesses 

For now, business owners should expect the mask mandates to be fluid and periodic. The mask mandate has the possibility to be extended past the January 15, 2022, date. Due to the lack of enforcement from law enforcement, business owners may choose to either enforce the Mask Mandate or not. However, Business owners must proceed with caution. 

Businesses are still required to protect their employees from hazardous conditions. If a company decides to treat the mask mandate with leniency, it may be vulnerable to civil liabilities like negligence, personal injury, and unsafe work environment penalties. 

According to Cal OSHA regulations, employers must provide a safe and secure workplace to their employees and take reasonable steps to address threats of violence and safety. Failure to do so is considered negligently. Additionally, if an employee contracts COVID-19 from the workplace, the company may be liable if they have not taken proper precautions to prevent the injury.

Therefore, Businesses are recommended to take the following steps:

  1. Educate all employees of COVID-19’s prevention, transmission (i.e., airborne, close contact, sweat, etc.) and symptoms (i.e., signs of flu – fever, sore throat, coughing, headache, loss of taste, etc.) through trainings, printed flyers, and posting COVID-19 safety measures.
  1. Implement or review your safety measures and procedures for prevention. For example, if an employee is sick with flu-like symptoms, they must notify the appropriate personnel and not attend work; If an employee tested positive for COVID-19, they must notify their manager and not return to the workplace until their symptoms have subsided, or they test negative for COVID-19. It is also important to have a plan of action in the event that there is an outbreak in the workplace. The last thing any business owner wants is to cease all business operations due to an outbreak and potentially face bad publicity. 
  1. To avoid any potential legal action, it is recommended to require your employees and customers to wear masks. 

As a private entity, businesses can: 

  1. Refuse service to anyone, with or without reason, as long as it is not based on a protected class (race, gender, disability, religion, ect.) 
  1. If a customer refuses to follow company policy, you may refuse service and ask them to leave. Remember, if you have requested an individual to leave your property, and they do not comply, they are trespassing. 
  1. If an employee refuses to wear a mask, you may prevent their admission to work unless they are medically exempt. As demonstrated in the Supreme Court’s decision against New York’s healthcare workers, employees must abide despite their religious or personal beliefs if a business enforces a state’s COVID-19 mandate.  

Businesses Are Vulnerable To Legal Action

Businesses are more at risk from employee complaints. Any business owner exposes themselves to civil liability if they disregard the mandate. California’s workplace safety and health regulations require employers to take reasonable steps to protect workers exposed to infectious diseases like COVID-19. This includes educating staff on COVID-19’s transmission, prevention, symptoms and providing necessary devices to keep the staff safe. 

If a business chooses not to enforce the mask mandate, an employee may file a complaint through California Occupational Safety and Health Administration (Cal OSHA). An employee may also file a civil lawsuit for negligence and recover damages for any injuries sustained caused by the employer’s violation of an order or regulation – in this case, the mask mandate. 

Conclusion

Mandates that are announced with little to no notice cause undue stress on businesses large and small. Throughout the pandemic, it has been a challenge for businesses to adapt. Coupled with this forced adaptation is an increase in legal requirements and regulations which can be incredibly hard to navigate. Whether or not you are a supporter of the mandate, it is here. You should prepare for the consequences of non-compliance, and for a potential extension as we see record-high numbers of COVD-19 cases across the nation. 

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