On May 21, 2020, Colorado Governor Jared Polis issued Guidance to Employers and Places of Public Accommodation Regarding Equal Opportunity Employment and Reasonable Accommodations Due to the Presence of COVID-19 (the “Colorado Guidance”). The Colorado Guidance discusses non-discrimination and reasonable accommodations for those with disabilities, “Vulnerable Individuals,” those with COVID-19, those who have been exposed to COVID-19, and those with symptoms of COVID-10. It also tracks, in large part, the EEOC’s own guidance on Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (the “EEOC Pandemic Guidance”), thereby providing clarity to Colorado employers on how to accommodate employees, applicants, and customers in the time of COVID-19.
Employees with Disabilities
The Colorado Guidance first reminds employers of their obligations under the Americans with Disabilities Act (“ADA”) to make reasonable accommodations that would allow those with disabilities to continue to have employment, while also providing examples and recommendations of how to accommodate employees with disabilities while the COVID-19 pandemic continues.
For instance, the Colorado Guidance reiterates that employers must make reasonable accommodations for employees with disabilities unless doing so would present “undue hardship,” and it goes on to recognize that the current circumstances relating to COVID-19 may create “significant difficulty” in acquiring or providing certain accommodations, considering the duties of the particular job and workplace environment. Thus, “[i]n some instances, an accommodation that would not have posed an undue hardship prior to the COVID-19 pandemic may pose one now.”
Further, the Colorado Guidance requires employers to consider accommodations on a temporary basis. Doing so requires careful documentation.
The Colorado Guidance then outlines some potential accommodations specifically applicable during the COVID-19 pandemic, including:
While employers may—and in many locations must—require employees to wear protective gear and observe infection control practices, Colorado employers should nonetheless provide a reasonable accommodation if feasible for employees with a disability under the ADA who are unable to undertake such practices (e.g., non-latex gloves, modified facial coverings for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment due to religious garb).
It ultimately remains the responsibility of the employee to notify the employer that they need an accommodation for a reason related to a medical condition. However, no magic language is required and the employee may request accommodation in conversation or in writing.
The Colorado Guidance provides additional information regarding Vulnerable Individuals, defined under Colorado’s Safer at Home Order as:
Vulnerable Individuals are not necessarily “disabled” for purposes of the ADA, but the Safer at Home Order nonetheless instructs employers to accommodate Vulnerable Individuals as much as possible and makes clear that they cannot be compelled to work.
Employers may not postpone or withdraw a job offer because the individual is at higher risk of contracting COVID-19, such as being 65 years old or pregnant. Thus, being a Vulnerable Individual does not justify unilaterally postponing the start date or withdrawing a job offer. However, the Colorado Guidance advises employers to consider allowing telework or to discuss with these individuals if they would like to postpone the start date.
Screening, Symptoms, and Confirmed COVID-19
Under the latest iteration of the Safer at Home Public Health Order issued May 26, 2020, employers must screen all employees for symptoms of COVID-19, such as fever, chills, cough, shortness of breath, or sore throat. The Colorado Guidance emphasizes that employers must consider or maintain all information about employee illness as a confidential medical record in compliance with the ADA.
Additionally, employers may screen applicants for symptoms of COVID-19 after making a conditional job offer, so long as it does so for all entering employees in the same type of job. Further, employers may withdraw a job offer if they need the applicant to start immediately but the individual has COVID-19 or symptoms of COVID-19. This Guidance largely tracks the EEOC Pandemic Guidance, which likewise provides that an employer may rescind a job offer if an applicant tests positive for or has symptoms of COVID-19, but may not rescind a job offer if an applicant simply has a medical condition that puts them at increased risk of infection (unless the applicant poses a direct threat).
The Colorado Guidance also provides that employers may require a doctor’s note certifying fitness for duty. As a practical matter, however, health care professionals may be too busy during the pandemic to provide traditional fitness-for-duty documentation. Therefore, employers should allow for more flexibility than may be typical during the fitness-for-duty process, such as permitting local clinics to provide a form, a stamp, or an email to certify that an individual does not have COVID-19.
Places of Accommodation
The Colorado Guidance reminds places of public accommodation that they should make reasonable efforts to grant access and services to all customers.
Perhaps the most contentious issue to arise in this context is customers that are not wearing face coverings. Some customers may have disabilities that prevent them from wearing face coverings, and the Colorado Guidance makes clear that places of public accommodation may “ask an individual without a mask (and therefore not complying with public health orders) to leave their establishment.” However, it also emphasizes that customers who have a disability that prevents them from wearing a face covering should nonetheless be accommodated to the extent possible. For example, businesses are encouraged to consider offering curbside delivery or pickup, when practicable, as an accommodation for patrons who are Vulnerable Individuals or who are unable to wear a mask because of a disability.
Additionally, places of public accommodation should not post or permit any sign that states or implies the following: “We reserve the right to refuse service to anyone.” The Colorado Guidance makes clear the state’s position that such signage “implies that management may rely on unlawful discriminatory factors in determining access to a place of public accommodation” and thus is prohibited, per Colorado Civil Rights Commission (CCRC) Rule 20.4.
All employers should follow the evolving guidance from state and local public health authorities that will change as the COVID-19 pandemic evolves and employers should follow the most current information on maintaining workplace safety.