Late on Friday, May 1, 2020, Denver Mayor Michael Hancock announced that the City and County of Denver will join other Colorado municipalities, as well as several private retailers and transportation providers, in requiring residents to wear “face coverings” in a broad array of public settings.  The order will take effect at 12:00 a.m. MST on Wednesday, May 6, 2020, and will carry a civil penalty of up to $999.00 per violation.

Denver is one of several municipalities that maintains a stay-at-home order for residents through May 8, 2020, despite Governor Jared Polis’s issuance of the statewide "Safer at Home" Order that relaxed the state-based stay-at-home order effective April 27, 2020.  Mayor Hancock previously indicated his intent to relax restrictions as the city strengthened testing capabilities, and on April 30, 2020, announced that the mandatory face coverings order is a necessary step towards allowing Denver’s stay-at-home order to expire on May 8, 2020.

The order clarifies that face coverings may be commercial or homemade, including those improvised from ordinary household materials.  But they must cover the nose and mouth at all times, and they should fit snugly but comfortably against the side of the face, include multiple layers of fabric, allow for breathing without restriction, and be able to be laundered and machine-dried without damage or change to shape.

The use of similar face coverings has been required for essential workers statewide since Governor Polis’s April 17 Executive Order D 2020 039.  But that order applies only to essential workers who must work in close proximity with others.  Denver’s order goes further to mandate the use of face coverings for all members of the public over the age of three while inside, or in line to enter, any retail or commercial business, businesses performing critical government functions (as defined in the Denver face covering order), healthcare operations, or while waiting for or riding on public or other passenger transportation with someone outside the individual’s family or household.  As a result, the order mandates face coverings for nearly all public outings except for the “outdoor activity” referenced in the Colorado Department of Public Health and Environment’s Public Health Order 20-28.  Stated differently, Denver’s order does not require masks while walking, hiking, biking, running, or otherwise engaged in similar activities outside the home.     

But the order does require masks for all employees, contractors, owners, and volunteers of any retail or commercial business, as well as entities and organizations with workers performing critical government functions.  The mandate applies both while performing work onsite, and while offsite any time the individual is: (1) interacting in-person with any member of the public; (2) working in any space visited by members of the public, such as in waiting rooms, store aisles, public restrooms, and other spaces used to interact with the public, regardless of whether anyone from the public is present at the time; (3) working in any space where food is prepared or packaged for sale or distribution to others; (4) working in or walking through common areas such as hallways, stairways, elevators, and parking facilities; or (5) in any room or enclosed area when other people (except for members of the person’s own household or residence) are present.  Exceptions exist when an individual is in a personal office (a single room), or when wearing a face covering would inhibit an individual’s health.

The order also mandates that any retail or commercial business, as well as entities and organizations with workers performing critical government functions, must take reasonable measures, such as posting signs, to remind their customers and the public of the requirement that they wear a face covering while inside of or waiting in line to enter the business, facility, or location.  Critically, these businesses, entities, and organizations must also take reasonable measures to prohibit any member of the public who is not wearing a face covering from entering and, if those efforts are unsuccessful, must not serve that person and must seek to remove that person.

What the Denver face covering order does not provide, however, is any indication whether employers are obligated to provide or pay for face coverings for employees.  Based on Section II.I.2.g. of the statewide Public Health Order 20-28, it appears that employers will be responsible for providing face coverings, at least for those businesses and government functions covered by that order.  But the silence in the Denver face covering order leaves many unanswered questions for those businesses that may lie between the statewide order and the Denver order. 

Thus, compliance with Denver’s face covering order will require a number of steps to ensure that both employees and members of the public are protected, and must be done soon.  Employers should consider taking the following actions as soon as possible:

• Develop a policy for the wearing of face coverings by employees, including information about who will provide the face coverings, launder them, and otherwise pay for their required use;
• Develop a policy for refusing service to customers and members of the public who fail or refuse to wear face coverings;
• Communicate the steps necessary for compliance to all employees, including the contents of any policies implemented;
• Post appropriate signage indicating that employees, customers, and the public are obligated to wear face coverings consistent with the Denver face covering order; and
• Enforce appropriate policies against both employees and customers who do not comply.