NOTE: Because the COVID-19 situation is dynamic, with new governmental measures each day, employers should consult with counsel for the latest developments and updated guidance on this topic.

Since the arrival of coronavirus disease 2019 (COVID-19) in Colorado, state and local officials have issued a dizzying array of executive actions in an attempt to slow the spread of the virus.¹ This ASAP endeavors to collect and summarize in one place each of these COVID-19-related executive and regulatory actions applicable or relevant to Colorado employers.

One of the more far-reaching efforts is Executive Order D-2020-013 issued by Governor Jared Polis on March 22, 2020, which directs Colorado employers to reduce in-person work by at least 50%. Some counties and municipalities have gone even farther, ordering that residents “shelter in place”—with Colorado’s largest city, Denver, announcing such a measure on March 23, 2020. However, as discussed below, these directives are each subject to a number of restrictions and exemptions, which may, as a practical matter, blunt their broad scope to some degree.

Additionally, since declaring a state of emergency on March 11, 2020, Governor Polis and the Colorado Department of Public Health & Environment (CDPHE) have embarked on an aggressive campaign of executive and regulatory action in an attempt to curb the spread of the COVID-19 virus in Colorado. These actions likewise impose multiple, fast-shifting obligations upon Colorado employers.

While this ASAP discusses each of these items in more detail below, the most material executive actions applicable to Colorado employers presently in place are:

1. Through at least April 10, 2020, all non-exempt Colorado employers must either (1) ensure at least six feet of space between their employees at the workplace, or (2) reduce the number of employees at their worksite by at least 50%.
2. Through at least April 10, 2020, all Denver residents are subject to a “stay at home” order, though this restriction is likewise subject to a number of exceptions and caveats.
3. Through April 30, 2020, the following industries are closed statewide in Colorado: all bars and restaurants (although both remain open for take-out or delivery), casinos, and other specifically enumerated industries.
4. Through April 17, 2020, all K-12 schools are closed in Colorado. Notably, being unable to work due to having to care for a child home from school due to a COVID-19-related school closure qualifies employees for job protected leave and paid sick leave under the newly enacted Emergency Family & Medical Leave Act and Emergency Paid Sick Leave Act, which takes effect on April 2, 2020.

All Covered, Non-Exempt Employers Must Either Reduce Their On-Site Workforce By 50% or Maintain Social Distancing of Six Feet

The broadest executive action in Colorado to date is Governor Polis’s Executive Order D-2020-013, which mandates that all Colorado employers reduce in-person work by 50% as of Tuesday, March 24, 2020. The Order also encourages all employers to implement telework to the greatest extent possible or, if telework is not possible, to stagger shifts to reduce the amount of employees on site at any given time, and to keep as many people as possible on payroll. It takes effect at 8:00 am on March 24, 2020, and continues until 11:59 p.m. on April 10, 2020, unless extended.

However, even with these restrictions, Colorado employers that certify that workers will not be closer than six feet during any part of the workday are exempted from the Order. The Order goes on to direct the CDPHE to develop a certification method regarding the requisite six-feet of social distancing in the workplace. However, no such certification has yet been issued as of publication.

Additionally, businesses that provide emergency personnel and infrastructure necessary to healthcare, government, public safety, manufacturing, and supply chain operations are also exempt from this Order. The “Critical Businesses” and “Critical Government Functions” subject to this exemption are set forth in the CDPHE’s Public Health Order 20-24—and the list is far-reaching. For instance, “Critical Businesses” includes:

• Healthcare Operations, like hospitals, research and laboratory services, home health companies, pharmacies, and veterinary care;
• Critical Infrastructure, like utilities and electricity, oil and gas companies, telecommunications and data centers, hotels and places of accommodation, and “[a]ny business that produces products critical or incidental to the construction or operation of the categories of products included in this subsection”;
• Critical Manufacturing, like food processing and manufacturing agents, chemicals, computers and computer components, medical equipment, and household paper products;
• Critical Retail, like grocery stores, gas stations, restaurants and bars (but only for take-out/delivery as described below, and marijuana dispensaries (but only for the sale of medical marijuana or curbside delivery as described below);
• Critical Services, like trash, mail, self-serve laundromats, child care services, auto supply and repair, warehouse/distribution and fulfillment, and animal shelters;
• News Media, including television, radio, and newspapers;
• Financial Institutions, like banks, as well as insurance, payroll, and accounting services;
• Providers of Basic Necessities to Economically Disadvantaged Populations, like homeless shelters and food banks;
• Construction, like housing for low-income and vulnerable people, skilled trades like electricians and plumbers, and “[o]ther related firms and professionals for who provide services necessary to maintain the safety, sanitation, and critical operation of residences, and other essential services”;
• Defense, like security and intelligence-related operations supporting the state, local, or federal government;
• Critical Services Necessary to Maintain the Safety, Sanitation and Critical Operations of Residences and Other Critical Businesses, like law enforcement, building code enforcement, security, janitorial staff, automotive repair, disinfection, and snow removal; and
• Vendors that Provide Critical Services or Products, Including Logistics and Technology Support, Child Care and Services, like technology support for online and telephone services, and child care programs and services.

“Critical Government Functions” are separately defined, and include such “Critical Services” as public safety, emergency response, judicial branch operations, emergency medical, public utilities, transportation lifelines like public transit and airports, and “[a]ny government service required for the public health and safety, government functionality, or vital to restoring normal services. Plainly, while the Order applies to all employers in Colorado, many industries may find themselves exempt as either part of a Critical Business or supporting a Critical Government Function.

However, assuming a workplace is not exempt, violations of the Order may result in a fine of up to $1,000 or imprisonment in county jail up to one year.

In sum, while Executive Order D-2020-013’s mandate that covered employers must reduce in-person work by 50% is facially quite broad, many industries are exempt from its purview and others may continue to operate if they can certify that its employees are maintaining social distancing of six feet from one another at the workplace.

Colorado’s Prior Orders Remaining in Effect

Executive Order D-2020-013 must be read in conjunction with the prior Executive Orders and Notices issued in Colorado, in which Governor Polis and the CDPHE also ordered the near-total shutdowns of a number of industries, including:

• From March 15, 2020, through April 6, 2020, all ski resorts and ski operators
• From March 23, 2020, through April 17, 2020, all K-12 schools²
• Through April 30, 2020:
  
  • All bars and restaurants (although both remain open for take-out or delivery)
  • Theaters
  • Gymnasiums
  • Casinos
  • Racetrack and off-track betting facilities
  • Hair and nail salons
  • Spas, tattoo and massage parlors
  • Nonessential personal services facilities

Failure to comply with these restrictions is likewise subject to penalties including a fine of up to $1,000 and imprisonment for up to one year.

Each of these industry shutdowns remains in effect until they expire upon their own terms or by future executive action.

Shelter in Place Restrictions in Denver, Boulder, and Multiple Mountain Counties

Social distancing restrictions have been taken even further in Denver, Boulder, and the Counties of San Miguel, Pitkin, Gunnison, Eagle, and Summit. On March 23, 2020, Denver Mayor Hancock announced a “stay at home” order, which takes effect at 5:00 p.m. on March 24, 2020, and applies to “all individuals anywhere in the City and County of Denver.” This Stay At Home Order mandates, among other things, that:

• All individuals in Denver may leave their residences only for certain specified Essential Activities or Businesses;
• All businesses with a facility in Denver (except for Essential Businesses) cease all activities within Denver; and
• All travel, including by car, is prohibited (except for Essential Activities).

Again, however, the details of the Order lessen its impact to some degree, as many industries and activities are exempt. Like Executive Order D-2013-013, the Stay At Home Order expressly does not apply to health care operations; certain infrastructure services and certain governmental functions; and “essential businesses,” similar to the ones exempt from Order D-2013-013.³

On March 23, 2020, the City of Boulder issued its own stay at home order, which covers the same time period and much of the same scope as Denver’s. The mountain counties of Gunnison, Pitkin, Eagle, and Summit Counties—home to Colorado’s famed ski towns of Aspen, Telluride, Vail, and Breckenridge—have likewise announced similar isolation orders, though the scope of each varies.

Given the many exemptions and exceptions to these Stay At Home Orders, we advise contacting counsel to determine whether they apply to your business or employees.

Modifications to the State’s Unemployment Insurance Claim Processing and Health Insurance Enrollment Programs

The state has also made material modifications to its unemployment insurance and health insurance programs.

On March 20, 2020, Governor Polis issued an Executive Order making certain modifications to the state’s unemployment insurance program. Likely most material to employers, this Order provides that COVID-19-related unemployment insurance claims will be charged to the fund instead of the employer. The Order also suspends the state’s one-week waiting period prior to receiving unemployment insurance benefits.

Separately, Colorado’s health insurance marketplace announced a special enrollment period for health insurance that runs from March 20 through April 3, in which individuals without health insurance can enroll for a state insurance plan effective April 1, 2020. Normally, absent a qualifying event (such as a job loss), individuals would only be able to enroll in the state exchange beginning in November.

The Colorado HELP Rule

The state has also instituted a limited paid sick leave program. On March 11, 2020, the Colorado Department of Labor and Employment issued the Health Emergency Leave with Pay (HELP) Rules, which require employers in certain covered industries to provide up to four days of sick leave for employees with flu-like symptoms who are being tested for COVID-19.

However, the HELP Rule applies only to employees in the following industries: leisure and hospitality; food services; child care; education; community living facilities; nursing homes; and home health.

Other State and Local Level Restrictions

The State of Colorado has taken many additional actions in response to the COVID-19 outbreak.

• The state income tax deadline is extended for all Colorado taxpayers from April 15 to July 15, 2020.
• Effective March 23, 2020, all voluntary or elective surgeries (whether medical, dental, or veterinary), are suspended until at least April 14, 2020.
• The City and County of Denver have postponed all gatherings of 50 persons, and closed all bars and restaurants except for carry-out, drive-through, or delivery, as well as “Marijuana Designated Consumption Areas” and hookah bars, through May 11, 2020.

Of course, new restrictions and obligations are enacted daily, and we encourage contacting counsel with questions about doing business in Colorado during these unprecedented times.