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Colorado’s Trek Back to Normal: Return-to-Work Orders After the COVID-19 Closures

On March 5, 2020, Colorado reported its first cases of coronavirus, which would multiply exponentially over the following weeks. Since then, the state and various municipalities, including Denver, have actively responded to the COVID-19 pandemic by issuing a series of orders affecting businesses and their requirements with respect to their employees. Denver issued a stay-at-home order effective March 24, 2020, shuttering many non-essential businesses. On March 25, 2020, Governor Jared Polis issued a statewide stay-at-home order, which effectively curtailed operations of non-essential businesses through April 26, 2020.

Colorado’s stay-at-home order expired on April 26, 2020, and was replaced by Executive Order D 2020 044 or the “Safer at Home” order. The Safer at Home order was initially enacted on April 27, 2020, and on May 8, 2020, the Colorado Department of Public Health and Environment issued a Second Amended Public Health Order providing additional guidance.  Under the Safer at Home order, non-essential businesses are permitted to operate, but employers must adhere to restrictions that apply generally to all businesses and additional restrictions that are industry specific. The Safer at Home order does not, however, preclude municipalities from adopting more restrictive protections. Indeed, while Denver’s stay-at-home order expired on May 8, 2020, new restrictions mandate face covering and maximum occupancy requirements on employers. In addition, the state has expanded rules requiring employers to provide certain employees with paid sick leave to obtain COVID-19 testing under the Colorado Health Emergency Leave with Pay (HELP) rules. As Colorado employers begin their effort to return to normalcy, navigating these various requirements presents significant challenges.

Colorado’s Safer at Home Order

On April 27, 2020, Colorado’s Safer at Home order became effective. The order permits cities and counties to extend local stay-at-home orders and enables local communities to enact restrictions greater than those imposed by the state. The order will remain in effect until May 27, 2020, but may be extended by executive order.

The Safer at Home order does not require most Coloradoans to stay at home, and instead strongly advises individuals to stay at home. Also, the Safer at Home order permits non-critical businesses to operate along with critical businesses. However, all businesses are subject to stringent restrictions, which vary according to criticality, workforce size, and industry.

Core Requirements

The Safer at Home order (as implemented by corresponding public health orders), directs all employers to adhere to the following best practices:

  • Deputize one or more workplace coordinators charged with addressing COVID-19 issues
  • Maintain six-foot distancing between employees when possible and discouraging shared spaces
  • Frequently sanitize all high-touch areas
  • Post signage for employees and customers on good hygiene
  • Ensure proper ventilation
  • Avoid gatherings of more than 10 people
  • Implement symptom monitoring protocols (including workplace temperature monitoring and symptom screening questions to the greatest extent possible)
  • Eliminate or regularly sanitize any items in common spaces, such as break rooms, that are shared (e.g., condiments, coffee makers, and vending machines)
  • Require employees to stay at home if symptomatic, and connecting them to company or state benefits providers
  • Provide hand washing facilities/stations and hand sanitizer
  • Encourage breaks to wash hands or use hand sanitizer
  • Phase shifts and breaks to reduce employee density
  • Provide appropriate protective gear like gloves, masks, and face coverings and encouraging appropriate use

In addition, the Safer at Home order directs employers with over 50 employees returning to the worksite to take the following additional measures:

  • Set up stations for symptom screening and temperature checks or “[c]reate a business policy that requires at-home employee self-screening each work day and reporting of the results to the employer prior to entering the worksite”
  • “Close common areas to disallow gatherings of employees”
  • “Implement mandatory cleaning and disinfection protocols”
  • “Require mandatory adherence to social distancing requirements”

The Safer at Home order also prohibits employers from requiring “vulnerable individuals” (defined as workers who are over the age of 65, have chronic lung or heart issues, are immunocompromised, are pregnant, or are “determined to be high risk by a licensed healthcare provider”) to return to the workplace. Rather, employers must provide work accommodations for vulnerable individuals, “prioritizing telecommuting,” since such individuals cannot be compelled to work at the employer’s worksite “during the pendency of this pandemic emergency.” The order also directs employers to accommodate workers with child care or elder care responsibilities and workers who live in the same household as a vulnerable person “to the greatest extent possible” by promoting flexible or remote scheduling. Similarly, the order strongly encourages employers to allow all other workers to telecommute whenever possible. Additionally, the Safer at Home order directs employees who are sick or who test positive for COVID-19 to stay at home except as necessary to care for themselves or seek medical care.

Industry-Specific Requirements

The Safer at Home order also imposes additional restrictions on certain categories of employers. For example, non-critical office-based businesses are permitted to allow only up to 50 percent of their employees to conduct in-person work and only pursuant to mandatory social distancing requirements and protocols. These businesses must also modify the flow of people traffic to minimize contacts.

Non-critical retail employers are permitted to open stores at 50 percent capacity. In order to reopen, the Safer at Home order and public health orders require retailers to meet conditions such as being able to effectively monitor employees for symptoms of COVID-19; provide face coverings, and gloves “as necessary and appropriate, to employees”; and ensure adequate cleaning and sanitization procedures. Additionally, retailers must log results of daily temperature checks and symptom monitoring of employees and increase the availability of hand sanitizer and wipes for employees and customers.

Employers operating nursing homes and congregate care facilities must develop an appropriate isolation plan and file it with the Colorado Department of Public Health and Environment (CDPHE). Additionally, all “essential individuals” (employees, contractors, and essential visitors) entering the premises must complete health screenings prior to entering a facility, and screening documentation must be maintained and made available to the CDHPE. Similar requirements are imposed on employers operating child care facilities, including limiting the number of child-staff and child-child interactions in common spaces as much as possible, establishing a clear plan to isolate staff who exhibit symptoms, determining a plan for substitute staff members to cover for ill or quarantined staff, requiring the use of face coverings or masks (with a preference for medical grade masks if available), providing training to all staff, and providing all staff with support and referrals for their mental health needs.

The Safer at Home order also imposes more specific restrictions on personal services (hair salons, personal training, dry cleaning, etc.), field services (realtors, home services, taxis, etc.), non-critical healthcare (chiropractors, podiatrists, etc.), and higher education employers.

Denver’s Additional Requirements on Employers

As it has done throughout the crisis, the City and County of Denver has adopted more protective standards than the statewide order. Under guidance from the Denver Department of Public Health & Environment, effective May 6, 2020, all retail and commercial businesses must require any employees, contractors, owners, and volunteers to wear cloth face coverings over their noses and mouths when:

  • “interacting in person with any member of the public;”
  • “working in any space visited by members of the public;”
  • “working in any space where food is prepared or packaged for sale or distribution to others;”
  • “working in or walking through common areas such as hallways, stairways, elevators, and parking facilities; or”
  • “in any room or enclosed area when other people . . . are present.”

Additionally, drivers or operators of any public transportation, paratransit vehicle, taxi, private care service, ride-sharing vehicle, or any other vehicle for hire must wear a face covering while operating such a vehicle even if no member of the public is in the vehicle.

Notably, if a worker’s face covering moves during work, the order requires it to be replaced with one that does not need to be frequently adjusted. Additionally, Denver’s requirements prohibit the use of masks that use a one-way valve designed to facilitate easy exhaling. Accordingly, the Denver order is more expansive than Colorado’s Safer at Home order with regard to those categories of employees who must wear face coverings and those situations in which employees working off-site must wear face coverings. Indeed, while the Colorado order requires employers to provide protective gear like masks (and gloves, etc.), the Denver order necessitates their use, and Denver businesses may want to prepare to provide face coverings to employees if necessary to ensure compliance with the order.

In addition to the face covering requirement, beginning May 9, 2020, non-critical retail, personal services, and office-based businesses may reopen in Denver if they adhere to a strict 50 percent employee threshold. Such businesses open to the public are also directed to create special hours for vulnerable persons, limit the number of on-site customers, provide hand sanitizer and wipes to the greatest extent possible, use contactless payment options, and create signage showing health protocols. Shopping malls, restaurants, movie theaters and the like remain under mandatory closure order (other than applicable take-out and delivery services).

The HELP Order and its Interplay with the Safer-at-Home Order

The Colorado HELP rules provide employees in certain industries with paid sick leave for possible COVID-19 cases and testing. The HELP rules apply to any employer engaged in or employing workers in the field of leisure and hospitality, food services, retail establishments, real estate sales and leasing, offices and office work, selective health services, personal care services, food and beverage manufacturing, child care, education at all levels, home health care, nursing homes, or community living facilities. Affected employers must provide up to 2 weeks (up to a maximum of 80 hours) of paid sick leave at two-thirds of the employee’s regular rate of pay for an employee (A) with influenza-like or respiratory symptoms and (B) who is (1) being tested for COVID-19 or (2) under instructions from a health care provider or authorized government official to quarantine or isolate due to a risk of having COVID-19.

The HELP rules are temporary rules, and are effective from March 11, 2020, until “the longer of (a) 30 days after adoption, or (b) the duration of the State of Disaster Emergency declared by the Governor, up to a maximum of 120 days after adoption of these temporary rules.”

In its original iteration, the HELP rules did not provide coverage for retail establishments, real estate sales and leasing, offices and office work, elective health services, or personal care services. Similarly, earlier versions of the order provided employees with four days’ full pay instead of two weeks at two-thirds pay. The HELP rules were modified on April 27, 2020, following issuance of the Safer at Home order based on the directive issued by the governor.

The paid sick leave benefits under the HELP rules end if the employee receives a negative COVID-19 test result “once the employee has been fever-free for 72 hours, with other symptoms resolving as well.” However, the paid sick leave may not end earlier than after 7 calendar days off from work or 10 for covered health care workers.

The HELP rules do not require employers to offer additional paid sick leave if the employer already offers employees with paid leave equivalent to the requirements under the HELP rules. However, if the employee has previously exhausted his or her allotted paid sick leave under the employer’s existing policy, and subsequently qualifies for paid sick leave under the HELP rules, the employee is entitled to the additional leave specified by the HELP rules.

While employees are out on paid sick leave under the HELP rules, employers must pay them based on their regular rate of pay, including all forms of wages and compensation. Employers must increase the rate to the applicable minimum wage for employees paid less than minimum wage due to a tip credit. Additionally, employers must pay employees for the employee’s regularly scheduled work hours. Where the employee’s rate of pay or hours worked has varied, the pay must be in the amount of the employee’s average daily pay for his or her last month of work.

The HELP rules generally incorporate, to the extent feasible, the procedures set forth by the federal Family and Medical Leave Act (FMLA) to provide paid sick leave under the rules. Employers may not, however, discharge an employee for inability to provide documentation during an illness covered by the HELP rules. Consistent with what the FMLA permits, employers may require documentation supporting the request for pay under the HELP rules, but such documentation may be required only upon returning from leave (i.e., not as a precondition of taking or remaining on leave) and may be in the form of an employee’s own written statement (which need not be notarized or in any particular form) instead of documentation directly from a healthcare provider.

Notably, the Colorado Safer at Home order may expand employers’ requirements to provide paid sick leave under the HELP rules. From a practical perspective, the Safer at Home order expands the number of employees who may return to work, and some workers called to return to work may experience symptoms qualifying them for paid leave under the HELP rules. Additionally, because the Safer at Home order directs employers to implement symptom screening and temperature checks, more workers may be identified as potential carriers of COVID-19, and it is possible that these employees may seek testing and become eligible for paid sick leave. Similarly, because the Safer at Home order directs employees who are sick or exhibiting symptoms to stay at home, it is conceivable that employees may have additional incentives to seek testing and receive benefits under the HELP rules.

Conclusion

The Safer at Home order, its Denver counterparts, and the HELP rules each impose obligations employers must consider when reopening in the current pandemic climate. Each order has been issued within the context of the overall state of the pandemic and modifies previous state and local governmental responses to the public health crisis. Because the pandemic continues to evolve, the orders and rules are subject to modification.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 136
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About this Author

Raul Chacon, Ogletree Deakins Law Firm, Labor and Employment Litigation Attorney
Associate

Raul represents employers in a broad range of employment law matters. He has litigated single plaintiff suits, and has experience in a variety of employment litigation matters, including wage and hour and discrimination litigation. He has extensive experience in litigation in both federal and state courts, as well as in responding to charges brought before state and federal administrative agencies.

Raul received his J.D. from Emory University School of Law, where he was elected to the Order of the Coif. During law school, Raul served as a...

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Michael H. Bell Shareholder Denver, Dallas Traditional Labor Relations, Employment Law, Litigation
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Michael (“Mike”) Bell represents employers in all aspects of labor and employment law,  focusing his practice on the defense of discrimination, harassment, and retaliation claims, employment-related torts, and civil rights claims under state and federal law.  A native of Charlotte, North Carolina, Mr. Bell obtained his bachelor’s degree, summa cum laude, in English and History from Appalachian State University.  He received his law degree from the University of North Carolina at Chapel Hill, where he captained the school’s Environmental Negotiation Moot Court team.  Mr. Bell is...

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