Food and Bar Service Rules for Face Masks in California

Food and Bar Service Rules for Face Masks in California

Sona Sulakian
The deteriorating COVID-19 situation in California has prompted Governor Gavin Newsom to order restaurants in 19 counties (including Los Angeles and Santa Clara) to stop dine-in service.  Bars were also ordered to close immediately.

Restaurants will only be allowed to offer food for pickup or delivery. This three week also applies to movie theaters, restaurants, wineries, zoos, museums, cardrooms, and other family entertainment establishments. 

Some experts suspect the declining use of masks as a reason for the uptick in Coronavirus cases.

As workplaces in California re-open, you may wonder if workers and customers are required to wear a face mask. Here is an overview of workers’ rights related to face masks.

As an employee, do I have to wear a face covering at work?

Yes. Although not an executive order, California requires people to wear face coverings or masks in public spaces when social distancing is not possible, absent some medical condition or hardship. You must wear a face mask:
  • Inside or in line to enter any indoor public space
  • When receiving healthcare services, such as at a hospital, dental office, lab
  • Waiting for or riding on public transportation
  • While working for a job that involves:
    • Interacting in-person with the public
    • Working in a public space, whether or not someone from the public is present
    • Working where food is prepared or packaged for sale or distribution to others
In other words, in stores customers and employees must wear masks. But in restaurants, it's not so clear cut.

The language states that customers who are seated at a restaurant, or other food or beverage establishment, do not need to wear a mask while eating or drinking if they are able to social distance from others.

Technically, this means that customers must wear masks at restaurants and bars while they are waiting for food or beverages, and after they've finished them. 

But one could argue that sipping water at the table constitutes "Drinking." 

If you are uncomfortable with customers who aren't wearing masks, you or a manager can ask them to put them on. 

Cloth face coverings, which can be made of a variety of materials including cotton or silk, are sufficient. 

Is my employer required to provide face coverings to workers?

Generally no. Employers are not required to provide face coverings unless employees are essential workers in the following categories that require surgical masks:
  • manufacturing, 
  • healthcare, 
  • food processing (includes workers at grocery stores, pharmacies, retail customer support, restaurant carry-out and fast food operations), 
  • community/social services, 
  • social work,
  • in-home daycare, 
  • law enforcement/public safety, and 
  • schools.
Workers that use surgical masks should replace the mask every day.  

Employers are required to keep workplaces free from hazards likely to cause death or serious physical injury. So employers need to provide safety measures such as social distancing and personal protective equipment.

But cloth face coverings are not considered personal protective equipment, which means employers do not need to provide them to workers. Still, employers can choose to provide face coverings to stop the spread of COVID-19, especially since other measures like social distancing are not very effective alone.

If cloth face coverings are not appropriate for your work situation (because it can get contaminated and lead to other problems), then employers should provide personal protective equipment, such as face shields or surgical masks.

If I wear a cloth face mask, do I still have to social distance?

Yes, social distancing measures are vital, in combination with cloth face masks, to prevent the spread of COVID-19.

Cal/OSHA has published guidelines for restaurants, bars, and wineries to provide safe, clean environments for employees and customers, which includes a long list of physical distancing measures. 

According to the guidelines, food and drink establishments should take reasonable measures, including limiting occupancy, posting highly-visible signs reminding customers to practice physical distancing, and installing physical barriers at cash registers, bars, and other areas where keeping a physical distance of six feet is difficult. 

Servers, bartenders, and other employees who must be within six feet of customers must wear face coverings.

The FDA and CDC have each published their own guidance for restaurants and bars that echo similar sentiments.

What other safety measures does my employer have to take?

If COVID-19 is a foreseeable workplace hazard for your business (probably for most businesses now), Cal/OSHA mandates that these employers implement infection control measures to prevent exposing their employees to the virus, including recommendations from the CDC

When applicable, employers should take the following safety measures:
  • Encourage sick employees to stay home
  • Send employees with symptoms of illness home
  • Provide sick leave for COVID-19 related reasons if required by the Families First Coronavirus Response Act
  • Enforce social distancing
  • Provide employees with cloth face coverings or encourage employees to use their own 
  • Avoid shared spaces and work tools 
  • Establish cleaning and disinfecting protocols
  • Inform employees of any employee who tests positive for COVID-19

If you are returning to work soon, you can read up on the measures your employer needs to be taking to protect you from COVID-19

Can I sue to force my employer to adopt better safety measures?

Maybe. An Oakland case, and similar cases around the country, suggest the employees may sue to force employers to adopt better safety measures during the pandemic.

McDonald’s workers in Oakland recently celebrated a win when a judge granted a temporary order forcing the management to improve its COVID-19 safety protocols before reopening. 

Following an outbreak at the location, the McDonald’s employees went on strike and complained that the restaurant required employees to serve their shifts even when they felt sick and gave them masks made of coffee filters or dog diapers. The judge ordered the McDonald’s remain closed until management can prove that it has provided better protective measures, including social distancing, employee temperature checks, and a sufficient supply of masks and gloves. 

Meatpacking workers at a Smithfield Foods Inc., who lost a similar case in May, are asking the judge to reconsider.

If you believe your employer isn’t following re-opening guidelines to keep you safe from COVID-19, read up on what actions you can take.

Remember, you have the right to file a complaint about workplace safety and health hazards. Your name must be kept confidential by law, unless you request otherwise. You can file a complaint here or by calling your Cal/OSHA district office.

This article is intended to convey generally useful information only and does not constitute legal advice. Any opinions expressed are solely those of the author, not LawChamps.
Sona Sulakian

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