Federal, state, and local governments are now taking a stronger approach by requiring certain employees to receive the COVID-19 vaccination or otherwise regularly test negative for the virus. This article discusses the current status of vaccine mandates and recommendations for contractors working for and with the city and county of Denver.
Tracking moving targets
Contractors for the city and county of Denver are now subject to not one, but up to three vaccine mandates. The mandates are issued by health departments for Denver, the state, and the federal government. Keeping up with the multiple mandates, however, and the moving targets due to revisions and updates, can seem daunting.
For example, on August 2, 2021, Denver’s Department of Public Health and Environment (DDPHE) issued a public health order (PHO) requiring vaccinations that included contractors performing work for Denver (except at the Denver International Airport). Weeks later, on August 31, Colorado issued its sixth amended PHO 20-38 that requires vaccinations for contractors working on state projects and their employees.
On September 1, DDPHE amended its August 2 PHO to more clearly articulate that contractors and subcontractors for Denver were within the order’s scope. On September 3, Denver rescinded and replaced its August 2 PHO with Colorado’s August 31 PHO 20-38.
On October 7, 2021, Denver again adopted Colorado’s most recent Seventh Amended PHO 20-38, which includes twice weekly COVID testing for State (and Denver) contractors who are exempt from the vaccination requirement for medical or religious reasons. Below is some helpful information to provide greater clarity for Denver city and county contractors.
Question: Colorado’s PHO 20-38 applies only to state facilities/contractors, but Denver adopted (and re-adopted) it without addressing DDPHE’s September 1 amended PHO, so which applies to my business?
Answer: Although Colorado’s Seventh Amended PHO 20-38 applies only to state facilities/contractors, it should be presumed that it applies in full to contractors that only work with Denver as if “City and County of Denver” replaces “State” in PHO 20-38 because DDPHE’s October 7 PHO rescinded and replaced its previous order and adopted Colorado’s PHO 20-38. DDPHE’s September 1 PHO should be read in conjunction with the Seventh Amended PHO 20-38 to the greatest extent possible since Denver has not formally rescinded or superseded it in writing.
Question: Are purely outdoor projects covered?
Answer: Unfortunately, there’s some ambiguity here. DDPHE’s September 1 PHO (not addressed when DDPHE adopted the State’s Seventh Amended PHO 20-38) would likely require vaccinations for personnel engaged in purely outdoor projects because it includes services performed “in the field.” The State’s Seventh Amended PHO 20-38 (adopted by Denver on October 7), however, requires vaccinations only for contractors who physically enter buildings. Thus, purely outdoor work may be excluded from the State’s vaccine mandate. Until (and if) DDPHE addresses this issue, the safest approach is to consider purely outdoor projects as covered by Denver’s vaccine mandate.
Question: What information should we obtain from employees to prove compliance with the vaccine mandates?
Answer: You should only request copies of an individual’s vaccination card or official immunization records from the Colorado Immunization Information System Public Portal. Additionally, you should obtain records related to medical or religious exemptions if they are sought by an employee. Anything more may be a “medical inquiry” that implicates the Americans with Disabilities Act (ADA).
Question: What if an employee refuses to receive a vaccine?
Answer: It’s your duty to establish policies and procedures to enforce the vaccine mandates and ensure compliance. This includes disciplinary measures, if any, for employees who refuse the vaccine. Care should be taken, however, to distinguish employees who simply refuse and those who purport to have a religious or medical exemption, in which case reasonable accommodations should be considered to comply with Title VII of the Civil Rights Act of 1964 and the ADA.
Recommendations for compliance
First, work with HR and legal counsel to develop policies and procedures related to mandating vaccinations, obtaining proof of vaccinations, securely maintaining vaccination records, accepting and reviewing requests for exemption/accommodation, and addressing employees who refuse to get vaccinated.
Second, securely maintain adequate vaccination records. Only HR should have access. This includes records related to any medical or religious exemption sought by employees.
Finally, consult with HR and legal counsel to evaluate and address requests for exemption, specifically religious exemptions. This is an evolving topic that requires a delicate approach.
It’s your duty, as the employer, to ensure compliance with the PHO. It may be helpful to visit https://www.denvergov.org/Government/COVID-19-Information/Guidance-Resources/Businesses/Employer-FAQ for more information.
Although there’s still some ambiguity with the city and county of Denver’s vaccine mandate, the penalties may be steep, but it’s expected the DDPHE will seek compliance before taking action for noncompliance. Failure to comply could result in legal or administrative action or fines (likely up to $5,000 per violation). To maintain compliance, encourage your employees to get vaccinated, collect and maintain records, and consider reasonable accommodations or disciplinary measures for employees who jeopardize your compliance with the vaccine mandate.