Effective Friday, November 20, 2020, new COVID-19 requirements go into effect in Colorado. On November 17, 2020, Colorado issued new COVID-19 requirements for businesses and activities in the First Amended Public Health Order 20-36 (the “Order”). The Colorado Department of Public Health updated its “COVID Dial” – assigning restrictions at six color-coded levels with varying requirements to “mitigate the spread of disease.” Employers must follow the requirements corresponding to the color level assigned to the county or counties in which they operate, including, notably, operating capacity limits. Some counties are also enforcing their own, stricter COVID-19 requirements.

Notable changes for employers from the State’s prior requirements include:

• The definition of individuals at risk of severe illness from COVID-19 is revised to align with the revised CDC definition, which added pregnant individuals and individuals who smoke
• Remote working is strongly encouraged
• Critical retail is subject to the 50% occupancy limit
• Critical businesses now include libraries and animal grooming
• Addition of a new highest risk designation on the COVID Dial – the Purple Level (where hospital capacity approaches 90% capacity)

Note that operating capacities stated in the Order for each color level refer to a percentage of the space’s posted occupancy limit, not a percentage of the business’s employees. Also note that at Levels Blue, Yellow, and Orange, any business or activity not specifically addressed in the Order or corresponding guidance may operate with 10 or fewer individuals per room; and at Levels Red and Purple, any business not specifically addressed in the Order are closed. Also, at Levels above Green, bars that do not serve food, and amusement parks, bounce houses, and ball pits are closed.

For example, at the Red Level (e.g. Denver County is currently at a Red Level risk, effective November 20, 2020), the State limits non-critical office-based businesses to in-person work up to 10% of their posted occupancy limit; retail may operate at 50% of the posted occupancy limit; non-critical manufacturing may operate at 25%, not to exceed 50 people per room; and personal services may operate at 25%, not to exceed 25 people per room; among other requirements.

In addition to the color-level specific requirements, the new state-wide Order also includes additional Business and Activity Requirements that employers should be aware of (this is not an exhaustive list of all requirements):

• Face Coverings are required in all indoor settings unless the individual is 10 years old or younger, cannot medically tolerate a face covering, or is participating in an activity specified in Executive Order D 2020 138.
• Work Accommodations must be provided, such as telecommuting, for individuals at risk of severe illness from COVID-19 who are still advised to stay in their residence. Employers are also strongly encouraged to provide reasonable work accommodations for individuals who reside with or care for at-risk individuals, and those who face child care needs while schools remain closed.
• Disease Prevention Measures for the Workplace must be taken, and include the following:
  • Deputize a workplace coordinator(s) to address COVID-19 issues
  • Maintain 6 feet of separation between employees, and discourage shared spaces
  • Clean and disinfect all high touch areas
  • Post signs for employees and customers on good hygiene
  • Ensure proper ventilation
  • Avoid gatherings over 10 people, or provide sufficient space for distancing requirements
  • Implement protocols for symptom monitoring, including daily temperature checks (the state has provided a proposed monitoring form, which can be found here).
  • Take steps if an employee reports symptoms: send the employee home immediately, increase cleaning and mandate 6-foot distancing requirements, exclude the employee until released from isolation by public health requirements
  • If 2 or more employees have symptoms, an employer must contact their local health department and consult CDPHE’s outbreak guidance.
  • Eliminate or regularly clean and disinfect items in common spaces
• Disease Prevention Measures for Employees must also be taken, and include the following:
  • Require employees to stay home if exhibiting symptoms
  • Provide work accommodations as required by the Order, including flexible or remote scheduling if possible
  • Encourage and enable remote work whenever possible
  • Take breaks to wash/sanitize hands
  • Phase shifts and breaks to reduce density
  • Provide protective gear and require face coverings
• Disease Prevention Measures for Customers include:
  • Create special hours for at-risk individuals, if possible
  • Encourage 6-foot distancing
  • Require face coverings for indoor spaces
  • Provide hand sanitizer
  • Use contactless payment and no-touch trash cans
• Large Employers with over 50 employees must also:
  • Set up worksite stations for symptom screening and temperature checks, or create a policy for self-screening and reporting prior to entering the worksite
  • Close common areas
  • Implement mandatory cleaning and disinfection protocols
  • Require 6-foot distancing
• Other Businesses and Activities are subject to specific requirements. Listed restrictions apply to non-critical office-based businesses, non-critical retail, non-critical manufacturing, personal services, restaurants, schools, ski resorts, and more.
• Critical Business and Critical Government Functions “may continue to operate, and must comply with Distancing Requirements, adopt work from home or telework policies for any operations that can be done remotely, and implement other strategies, such as staggered schedules or re-designing workplaces, to create more distance between workers unless doing so would make it impossible to carry out critical functions.” Even critical businesses must take specific, additional steps to protect their workforce, and continue to follow sector-specific guidance as well.

A list of critical businesses and services and other definitions are provided in the Order. Be aware that these State requirements will change and that implementing these required measures will have implications under various employment laws.