On April 27, 2020, Colorado began its phased relaxation of the statewide stay-at-home restrictions in place since March 25, 2020, with Governor Jared Polis's issuance of Executive Order D 2020 044, styled the "Safer at Home" Order. Colorado has thus joined the growing number of states permitting certain employees to report to work.
Colorado's approach, however, is distinct: its return-to-work guidelines are some of the most complicated measures in the country, as detailed in the 34-page Public Health Order 20-28 expounding on the Safer at Home Order, and the many pages of additional rules and guidance posted on the state's designated COVID-19 webpage. These requirements include everything from mandatory daily temperature checks and symptom monitoring, to the designation of a COVID-19 "workplace coordinator," and additional detailed rules applicable to specific industries.
This Insight summarizes what the Safer at Home Order requires, to whom it applies, and various other important issues it raises. The state is issuing additional rules and guidance at a steady clip, so it is important for employers to stay updated on emerging developments.
All Businesses Permitted to Open Must Follow Many Additional Requirements, Including Administering Daily Temperature Checks and Symptom Monitoring
Before addressing the categories of businesses that may reopen, it is important to emphasize that all businesses that open must deploy a series of complicated procedures to comply with the Safer at Home Order. If these procedures are not implemented, the business risks being fined and ordered to close, among other penalties.
Temperature & Symptom Checks. First, all employers that open must implement symptom monitoring protocols, which include daily temperature checks and monitoring symptoms in employees. In most cases, this will require having a designated person at the door check for symptoms and take the temperature of all employees, vendors, and visitors before they can enter the business, as well as ensuring that individuals queuing for the check maintain a six-foot distance from one another.
Individuals whose temperatures test at 100.4ﹾF or higher should be told to exit the facility and to contact their supervisor for notification, while individuals with temperatures of 99.2 ﹾF or higher should monitor their temperatures twice a day and also notify their supervisor. Likewise, employees should be asked if they have dry cough, shortness of breath, sore throat, and/or nasal congestion, and those who have two or more symptoms should be told to leave the facility and notify their supervisor. Employees with an elevated temperature or symptoms of COVID-19 should also be referred to the Colorado Department of Public Health and Environment (CDPHE)'s symptom tracker.
Procedures When Employees Show Symptoms of or Test Positive for COVID-19. Additionally, the Order requires a number of steps employers must take if an employee tests positive or shows symptoms of COVID-19. Namely, employers must increase cleaning in the facility and reiterate that staff must maintain social distancing of at least six feet, and exclude the employee with symptoms from the workplace until the individual is fever-free without medication for 72 hours and at least seven days have passed since their first symptoms. Additionally, if multiple employees have symptoms, the employer must notify the local health department.
COVID-19 Workplace Coordinator. Further, the Order requires businesses to deputize a workplace coordinator(s) charged with addressing COVID-19 issues. This coordinator should be the point person for ensuring compliance with the Order, addressing questions related to COVID-19, and handling other issues that may arise regarding returning to work.
Social Distancing and Sanitation Requirements. The Safer at Home Order reiterates that employers must continue to enforce Social Distancing Requirements. This includes taking steps to ensure that employees maintain six feet of separation; discouraging shared spaces; cleaning and disinfecting all high-touch areas in accordance with guidance from the CDPHE; posting signage for employees and customers on good hygiene; ensuring proper ventilation; encouraging breaks to wash hands or use hand sanitizer; phasing shifts and breaks to reduce density; and avoiding gatherings of more than 10 people.
"Vulnerable Individuals" Must be Accommodated and Must Still Shelter in Place
The Order requires employers to "provide reasonable work accommodations for Vulnerable Individuals," such as telecommuting.
"Vulnerable Individuals" are defined to include:
- Individuals who are 65 years and older;
- Individuals with chronic lung disease or moderate to severe asthma;
- Individuals who have serious heart conditions;
- Individuals who are immunocompromised;
- Pregnant women; and
- Individuals determined to be high-risk by a licensed healthcare provider.1
These individuals must remain at home even if their workplace opens, and the Order is explicit that they "cannot be compelled to work for any business or government function," even if the individual's place of employment is open for business.
With regard to customers, the Order requires employers to "create whenever possible special hours for Vulnerable Individuals only." For example, many grocery stores already have implemented hours where only Vulnerable Individuals may enter the store to minimize their risk of exposure to COVID-19.
Provide Protective Gear, Like Masks, Gloves and Face Coverings. The Order requires employers that open to provide appropriate protective gear like gloves, masks, and face coverings to their employees, and encourage customers to utilize the same while on the premises. What is appropriate may vary by workplace.
Other Requirements. The Safer at Home Order provides a number of additional requirements and recommendations. Employers should, to the greatest extent possible, provide flexible or remote scheduling for employees who may have child or elder care obligations, or who live with a Vulnerable Individual. Likewise, employers should continue to encourage and enable remote work whenever possible.
Additional Requirements for Employers with 50 or More Employees: If an employer has 50 or more employees in a single location, it must also:
- implement stations for symptom screening and temperature checks;
- close common areas to disallow gatherings of employees;
- implement mandatory cleaning and disinfection protocols; and
- require mandatory adherence to Social Distancing Requirements (which requires the implementation and enforcement of a written Social Distancing Policy).
Certain Business Permitted To Open
Having addressed how to reopen, we turn next to who can reopen. The Safer at Home Order only permits certain authorized businesses to open, subject to the above requirements and some additional, industry-specific rules.
First are Critical Business and Critical Government Functions,2 which were allowed to stay open throughout the period that the now-expired Stay at Home Order was in effect. These same Critical Businesses and Critical Government Functions may remain open, but are now subject to the new restrictions described above.
Non-Critical Retail, defined as, essentially, any retail service not included in the list of "Critical Businesses," are also now permitted to open. Non-Critical Retail includes businesses like retailers of clothing, home goods, cell phones, mattresses, and appliances; thrift shops; apothecaries; vape and tobacco shops; craft, hobby and fabric stores; fishing tackle retailers; sporting goods stores; boutiques; and the like. Until May 1, 2020, however, Non-Critical Retail Businesses may operate and offer goods only through delivery, window service, walk-up, drive through, drive-up, curbside delivery, or any other manner allowing for strict compliance with mandatory social distancing requirements.
As of May 1, 2020, retail businesses may open to the public at 50% capacity. They must still take additional preventative steps, such as limiting returns, installing Plexiglas screens at checkout counters, using contact-less payment systems, closing public seating areas, marking six-feet distancing measures in check-out lines, and the like. Please refer to the applicable guidance for more specific information applicable to retail businesses, and/or contact counsel.
Field Services. As of April 27, 2020, Field Services are also now permitted to be open. Field Service businesses are those that provide a service out in the field as opposed to a company property, such as real estate businesses, lawn care and landscaping, house cleaning, handyman services, and more. There are additional requirements specifically applicable to Field Services businesses, including:
- When scheduling or conducting field services, either the employer or an employee must inquire whether third-party homes have individuals symptomatic for COVID-19 or have been in contact with known positive cases, and exercise caution when inside the home and interacting with anyone in the home if they do;
- Employers must maintain a detailed log of customer interactions to enable contact tracing if it becomes necessary. The log should include the name, date, and location of contact, as well as the contact's phone number and/or email address; and
- All tools or equipment must be sanitized after each customer visit.
Personal Services. As of May 1, 2020, Personal Services may resume in-person services if they meet the requirements of the Safer at Home Order. Personal Services businesses are "services and products that are not necessary to maintain an individual's health or safety, or the sanitation or essential operation of a business or residence," and include things like hair salons, massage therapists, pet groomers, and dry cleaners. Personal Services businesses must limit gatherings at the workplace to 10 or fewer people or 50% of the maximum occupancy for the location, inclusive of employees and customers.
Non-Critical Office-Based Businesses. As of May 4, 2020, Non-Critical Office-Based Businesses may allow up to 50% of their employees to conduct in-person work. Notably, Colorado permits office-based businesses with fewer than 25 employees to have their employees conduct self-temperature and symptom checks at home before coming to work, rather than being tested at the workplace.
Business Not Permitted to Open
The Order also specifies industries that still must remain closed to ingress, egress, use, and occupancy by members of the public for the immediate future. These industries are:
- Restaurants, food courts, cafes, coffeehouses, and other similar places of public accommodation offering food or beverage for on-premises consumption;
- Bars, taverns, brew pubs, breweries, microbreweries, distillery pubs, wineries, tasting rooms, special licensees, clubs, and other places of public accommodation offering alcoholic beverages for on-premises consumption;
- Cigar bars;
- Gyms (with limited exceptions);
- Movie and performance theaters, opera houses, concert halls, and music halls;
- Casinos; and
- Horse tracks and simulcast facilities, also known as off-track betting facilities.
However, the requirement to remain closed does not apply to:
- Room service in hotels;
- Health care facilities, residential care facilities, congregate care facilities, and juvenile justice facilities;
- Crisis shelters or similar institutions;
- Airport concessionaires;
- Institutions of higher education offering dining hall services located in or adjacent to campus dormitories that are accessed through student, staff, faculty, or campus-associated identification, as well as grab-and-go food services within these institutions, while exercising social distancing measures of at least six feet between individuals;
- Fitness centers and nonessential personal services included in residential facilities, such as hotels, apartment or condominium complexes or similar housing arrangements, that are limited to use only by hotel guests or residents of the housing who are following social distancing requirements of at least six feet between individuals, and the hotel or property managers are performing frequent environmental cleaning; and
- Any emergency facilities necessary for the response to these events.
Social Distancing Requirements Remain in Effect
The Safer at Home Order does not loosen many of the Social Distancing requirements in Colorado. It urges all individuals and businesses to limit gatherings to at most 10 people, maintain six feet distance between individuals, and to stay at home and to isolate when possible. Further, employers are encouraged to permit employees to work remotely when possible. Individuals are urged to wear face coverings in public.
The Order expressly provides that local authorities may deviate from the terms of the Safer at Home Order. However, localities seeking to implement a different COVID-19 suppression plan must apply to the CDPHE for a waiver, and include in their application an alternative COVID-19 suppression plan endorsed by the local public health agency and adopted by the county commissioners or other county-level governing body, in addition to verification from local hospitals that they have the capacity to serve all people needing their care.
Localities May Adopt Stricter Rules Than the Safer at Home Order, and Many Already Have Done So
While there are limitations on counties loosening the restrictions from the Safer at Home Order, Colorado municipalities are free to adopt stricter approaches than the baseline set at the state level. Many Colorado municipalities have already indicated that, despite Governor Polis's relaxing of the statewide shelter-in-place order, they do not intend to relax the restrictions in place within their purview in the near future.
For instance, the City and County of Denver has announced that its stay-at-home order will remain in effect through at least May 8, 2020, and Denver Mayor Michael Hancock has indicated that he plans to relax restrictions only when the city has the capability to test 1,000 people per day, nearly doubling its current testing rate of 550 people per day. Denver also expects to need to train approximately 100 people to trace contacts of those who test positive.
To varying degrees, Adams, Arapahoe, Boulder, Broomfield, Gilpin, and Jefferson Counties have also extended restrictions in their jurisdiction beyond the baseline set by the Safer at Home Order.
To say that navigating these myriad new and interconnecting rules is challenging is an understatement. Due to the complexities surrounding returning to work and the wide variation of regulations and permissible practices based on location, businesses should consult with experienced employment law counsel before implementing a return to work program.
1 How the Safer at Home Order interacts with the Americans with Disability Act (ADA) and Colorado Anti-Discrimination Act (CADA) is unclear. The ADA and CADA require employers to provider reasonable accommodations to employees who are "disabled," but simply being 65 or older in many cases would not meet the standard for disabled under the statutes. Thus, the Safer at Home Order requires employers to provide accommodations that exceed what is required under federal and state law.
2 For a comprehensive list of all "Critical Businesses" and "Critical Government Functions," please refer to Appendix F of the Safer at Home Order.
Originally published by Littler Mendelson, April 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.