By Patrick O'Brien, JD, Legal Coordinator, American Med Spa Association

The COVID-19 pandemic appears to be on the wane, and many parts of the country are reopening and returning to "normal." On May 13, the U.S. Centers for Disease Control and Prevention (CDC) updated its guidance that vaccinated people no longer need to wear masks in most situations. Starting this Tuesday, June 15, California updated its mask rules to match CDC guidance. However, both of these changes contain exceptions that are often not mentioned. In our prior coverage of the CDC updates (please see here), we noted that these mask changes do not apply in health care settings. Have these new developments changed anything?

California's new mask rules, which are available here, also contain exceptions for health care settings, as does the CDC guidance. "Health care setting" is a broad term that includes any situation where health care is delivered to patients, including clinics and offices. The current CDC guidance for health care settings recommends that health care personnel continue to wear face masks. However, if all staff members are fully vaccinated and not providing patient care, they could hold meetings, eat and take breaks without masks. But, for California businesses, this may not apply, due to other rules discussed below.

In its guidance, the California Department of Public Health also notes that businesses are still subject to California Division of Occupational Safety and Health (Cal OSHA) requirements. Cal OSHA is focused on workplace safety in all types of places of employment in California, including health care settings. In response to the pandemic, Cal OSHA instituted temporary emergency standards, which expand coverage to workplaces not already covered by the existing Aerosol Transmissible Diseases standard. Health care settings generally need to follow the Aerosol standard unless they are an outpatient medical specialty practice. Medical spas are not automatically considered a specialty practice and need to satisfy certain conditions to qualify. If they meet the standards for the exemption, they need to comply with the emergency temporary standards.

Currently, neither of these standards account for any vaccination status, but Cal OSHA will be holding a special meeting to adopt revised rules later this week. Governor Gavin Newsom has stated his intention to use an executive order to take immediate effect if these new rules are approved. That means requirements could be eased as early as Thursday. The proposed rule changes would allow employees to forego masks if everyone present is fully vaccinated. If there is a mixture of vaccinated and unvaccinated people, masks would still be necessary for all.

So, What Do We Need To Do?

Obviously, the state of COVID-19-related restrictions and health care is in a state of flux. As of right now, it appears that very little has changed for those working in health care settings. However, as discussed above, new rules may go into effect very soon, possibly by the time you are reading this. Therefore, for California medical spas it may be prudent to take a wait-and-see approach and plan to re-assess the situation in a few days.