On April 27, 2020, Colorado will enter a new phase in its fight against COVID-19, when the “Stay-at-Home” Order issued by Governor Polis expires and is replaced by what the governor has labeled relaxed “Safer at Home” restrictions. While the governor has not yet issued an executive order setting forth the precise terms of these new restrictions, his administration has released piecemeal information outlining the general contours of what “safer at home” means for Colorado.

As discussed below, however, many counties and municipalities have not relaxed the stay-at-home orders, and many businesses in the Denver metropolitan area and other parts of the state may remain under strict stay-at-home orders into May 2020 or beyond.

Easing of the Statewide Shelter-in-Place Order

“Safer in place” does not mean that businesses may reopen en masse and without restriction. Rather, it envisions a phased reopening of certain businesses on a limited basis, with additional businesses permitted to open in the future on an iterative basis. To date, Governor Polis has announced that the following businesses may, at least partially, open between April 27 and May 4:

• Office Workers. On May 4, offices may bring back up to 50% of their employees for in-person work so long as they have instituted social distancing procedures. If, however, offices are able to keep their operations running smoothly with their employees working remotely, the governor urges offices to continue doing so.
• Retailers. On April 27, retailers will be permitted to open for curbside pickup only. On May 1, retailers may open for in-store customers so long as they have instituted social distancing procedures.
• Real Estate. On April 27, real estate agents may begin conducting one-on-one showings, but not open houses.
• Salons, tattoo shops, personal trainers, dog groomers, and other one-on-one personal services. On May 1, salons, tattoo shops, personal trainers, dog groomers, and other one-on-one personal services may open so long as they have instituted social distancing procedures. Governor Polis is expected to issue a comprehensive list of businesses included in the “personal services” category by April 26.
• Medical Providers. On May 1, medical providers, including dental offices, may reopen to perform elective surgeries, but must follow strict safety guidelines. The governor is expected to issue these guidelines in advance of May 1.

Of course, even if permitted to open, businesses must continue to follow all social distancing guidelines, including maintaining six feet of social distancing between employees, customers, and other visitors, sanitizing public spaces, and wearing face coverings. Further, just because businesses have the option to open does not mean they necessarily should.

To be clear, many other businesses must still remain closed for the immediate future, including restaurants and bars (except for takeout and delivery); nightclubs; gyms and spas; large sporting events; and any gatherings of more than 10 people, including concerts and theatrical performances.

Additionally, Governor Polis has confirmed that schools will remain on a remote schedule through the remainder of the 2019-2020 school year.

Denver’s Stay-at-Home Order will Remain in Effect Through at Least May 8, 2020

Municipalities in Colorado may adopt stricter approaches than the baseline set at the state level. Many Colorado municipalities have already indicated that, despite Governor Polis’s loosening of the statewide shelter-in-place order, they do not intend to loosen the restrictions in place within their purview.

Denver, for its part, has led the charge to maintain stay-at-home orders. Indeed, since COVID-19 first appeared in Colorado, Denver Mayor Michael Hancock has consistently implemented strict guidelines in Denver, and on March 23, 2020 was one of the first to issue a stay-at-home order in Colorado (before the state-wide shelter-in-place order was issued). Demonstrating how seriously Hancock has taken the stay-at-home order, Denver has reported contacts with at least 6,090 businesses and residents about compliance with the stay-at-home order, and has issued 1,796 warnings and 14 citations.  

At a press conference on April 24, 2020, Mayor Hancock announced that he would extend the stay-at-home order for the City and County of Denver through May 8, 2020. Mayor Hancock stated he plans to relax restrictions only when the city has capabilities 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. Mayor Hancock has underscored that testing and tracing are crucial for stopping secondary surges, and voiced strong reluctance in lifting the stay-at-home order until the city has this level of testing capacity. As a result, in a best-case scenario, Mayor Hancock anticipates that Denver’s restrictions could be relaxed over the next two to four months, in time for schools to reopen in the fall.

Other Colorado Counties Have Likewise Extended Their Shelter-in-Place Orders—but One Intends to Relax Guidelines Beyond the “Safer at Home” Order

Officials in Jefferson and Boulder Counties, located in the Denver metropolitan area, have extended their stay-at-home orders to mirror Denver’s, and other counties in the Denver area are expected to follow suit shortly. Thus, restrictions on businesses in the Denver metropolitan area are not expected to change much from the current shelter-in-place order until May 8 at the earliest.

One county, however, has taken the opposite approach. Weld County recently announced it is implementing “Safer at Work” guidelines, which permit any business in Weld County to be open so long as they observe safety and social distancing requirements. In other words, Weld County intends to loosen its restrictions on businesses and residents beyond Governor Polis’s “Safer at Home” order.

Governor Polis’s office has indicated that while counties may adopt stricter guidelines than what is set at the state level, the only way that counties may loosen restrictions beyond the state level is if the county can offer proof of 14 consecutive days of decline in COVID-19 infections in their county, and submit an application to the state health department that includes a COVID-19 suppression plan approved by the county’s local public health authority and all hospitals in their jurisdiction. Weld County has not yet met these strict requirements, and it remains to be seen whether and when it will move forward with its “Safer at Work” plan.

What Does this Mean for Employers?

As noted above, whether a company is legally permitted to open and whether and to what extent it should are two very different questions.  For guidance on whether and how to prepare to reopen for work, please see our publication on The Next Normal: A Littler Insight on Returning to Work – Safety and Health or consult counsel.  Due to the complexities surrounding returning to work and the wide variation of regulations and permissible practices based on location, businesses should consult with competent employment law counsel before implementing a return to work program.