On Sunday, April 26, Colorado Governor Polis issued a Safer at Home Executive Order, which provides guidelines for the limited reopening of certain businesses. For example, today, non-critical retail businesses and places of public accommodation that offer food and beverages may provide services through delivery or curbside delivery, field services (including real estate) may resume operations, and elective surgeries and procedures can proceed. These changes are with the caveat that all businesses must comply with social distancing requirements, which include the provision of personal protective equipment to employees.
Starting May 1, non-critical retail and limited personal services may resume in-person services at 50% capacity, and on May 4, non-critical office-based businesses may allow up to 50% of their employees to conduct in-person work, as long as the businesses: (1) deputize a workplace coordinator charged with addressing COVID-19 issues; (2) maintain six foot separation between employees and discourage shared spaces; (3) clean and disinfect all high touch areas; (4) post signage for employees and customers on good hygiene; (5) ensure proper ventilation; (6) avoid gatherings of more than ten people; and (7) implement symptom monitoring protocols, conduct daily temperature checks, and monitor symptoms in employees.
Limited Application of Stay at Home Order
Some aspects of the Governor’s original Stay at Home Order will remain in place. For example, employers cannot compel vulnerable people to return to work, must prioritize telecommuting for these individuals, and employers cannot discriminate against them. Vulnerable people are 65 years and older, individuals with chronic lung disease, asthma, or serious heart conditions, people who are immunocompromised, pregnant women, and individuals determined to be high risk by a licensed healthcare provider. Gatherings of more than ten people are still prohibited. And restaurants, bars, movie theaters, casinos, and horse tracks will remain closed.
Employment Considerations
The Safer at Home Order still encourages telecommuting as much as possible. As a result, employers who require an employee to return to work should be prepared to persuasively demonstrate and document that the job in question cannot effectively be performed outside of the office. This is particularly true with employees who may have health issues and are therefore more susceptible to adverse consequences resulting from potential exposure to COVID-19. If an employee quits rather than return to work because the employee thinks the workplace is unsafe, the employee may be entitled to unemployment benefits.
Further, under ordinary circumstances, it could be considered discriminatory to single out vulnerable populations who are at greater risk of health complications for disparate treatment. However, under current conditions, it may be permissible to require employees in vulnerable populations to telecommute. The Governor’s order, many local health orders, and even the CDC guidelines have made clear that the government’s policy intent is to protect people in vulnerable populations. The Equal Employment Opportunity Commission has stated that employers should follow these orders and guidelines, even if that means treating differently employees who are at risk of severe health complications. That said, employers should proceed with caution and avoid making unsupported assumptions that certain individuals may be at increased risk of complications from a health standpoint. The safer course is to rely on actual knowledge that an employee is vulnerable due to his or her prior voluntary disclosure of such information.
Devra Hake, a Law Clerk at Holland & Hart, also contributed to this article.
