Colorado Employment Law Update – In-Person Reduction and Stay-at-Home Orders Create Layered Obligations for Employers


March 2020

March 24, 2020;
PLEASE NOTE: The U.S. Department of Labor released new guidance on March 26. Please view our updated article, Colorado Executive Order D 2020 017 Provides Statewide Stay-at-Home Directive (March 27, 2020).
 

Colorado Governor Jared Polis issued Executive Order D 2020 013 (“EO D 2020 013”) on March 22, 2020, requiring all non-critical businesses in Colorado to reduce their in-person workforce by fifty (50) percent or more, effective March 24, 2020.  He further directed the Colorado Department of Public Health and Environment (CDPHE) to define exemptions to EO D 2020 013, to develop a method to certify employer compliance and to set penalties (Public Health Order 20-24).

Following Governor Polis’ Order, on March 23, 2020, Denver Mayor Michael Hancock announced a “stay-at-home” order to apply to the entirety of the City and County of Denver[1].

In this update, we will explore the critical details of each order, the differences between these orders, and what this means for Colorado employers.

When Will These Orders Take Effect?

EO D 2020 013 and Colorado PHO 20-24 requiring businesses to reduce their in-person workforce by at least 50 percent will be effective as of March 24, 2020 at 8:00 a.m. Mountain Daylight Time (MDT) and will remain in effect until April 10, 2020 at 11:59 p.m. MDT.

The Denver Stay-at-Home Order is effective as of March 24, 2020 at 5:00 p.m. MDT and remains in effect until April 10, 2020 at 5:00 p.m. MDT.

What Do These Orders Mean?

EO D 2020 013 mandates that Colorado employers reduce all in-person work that takes place outside of a private residence by at least 50 percent. The Executive Order also directs all Colorado employers to implement “telework” or other work from home capabilities “to the greatest extent possible.” If implementing work from home is not possible or practicable, the Executive Order encourages businesses to stagger work schedules to reduce the physical proximity of employees and to keep employees on payroll. Violations of the orders in EO D 2020 013 carry penalties including fines of up to $1,000 and imprisonment for up to one (1) year.

The Denver Stay-at-Home Order is significantly broader and requires “all individuals anywhere in the City and County of Denver to stay at their place of residence,” except for essential work and activities. The residence may include hotels, motels, shared rental units, and similar facilities. If outside of the individual’s residence, a person must at all times maintain a physical distance of at least six (6) feet to the extent reasonably possible. The Stay-at-Home Order also outlines “social distancing” recommendations for individuals and businesses, including: (1) 6 feet physical distance; (2) washing hands with soap and water for at least twenty (20) seconds; (3) regularly cleaning high-touch surfaces; and (4) not shaking hands.

The Stay-at-Home Order further requires all businesses with a facility in Denver to cease all activities at facilities located within Denver, except for essential businesses and minimum basic operations. These minimum basic operations include: (1) work necessary to maintain value of inventory, ensure security, process payroll and benefits, or for related functions; (2) work necessary to facilitate remote work; and (3) work necessary to facilitate employees filling product orders and process customer orders remotely. The minimum basic operations must provide social distancing, including physical distance of at least 6 feet per person to the greatest extent possible.

Violations of the Stay-at-Home Order may be subject of a penalty of $999 per violation. Businesses may allow employees or contractors to work at their own residences. Essential businesses must also maintain 6-feet or more of physical distance between individuals, including when customers are standing in line. Additionally, all travel, except for essential travel and essential activities is prohibited. The Stay-at-Home Order also encourages essential businesses to establish separate hours of operation for individuals over the age of 60 to patronize the business.

Who Do the Orders Apply To?

Colorado Executive Order and Public Health Order

EO D 2020 013 / PHO 20-24 apply to all Colorado employers, including but not limited to those operating out of a fixed location within the State of Colorado.

Businesses that can certify employees are six (6) feet or more apart during all work hours and critical businesses identified in PHO 20-24 are exempt from the 50 percent in-person work reduction requirement for Colorado. The critical businesses identified in PHO 20-24 are:

1. Healthcare Operations

  • Hospitals, clinics, and walk-in facilities
  • Medical and dental care, including ambulatory providers
  • Research and laboratory services
  • Medical wholesale and distribution
  • Home health care
  • Pharmacies
  • Pharmaceutical and biotechnology companies
  • Behavioral health care providers
  • Veterinary care and livestock services
  • Nursing homes, residential health care, or congregate care facilities
  • Medical supplies and equipment manufacturers and suppliers

2. Critical Infrastructure

  • Utilities and electricity
  • Road and railways
  • Oil and gas
  • Public water and wastewater
  • Telecommunications and data centers
  • Transportation and infrastructure necessary to support authorized businesses
  • Hotels and places of accommodation
  • Organizations that provide food, shelter, social services, and other necessities for economically disadvantaged or otherwise needy individuals
  • Food and plant cultivation
  • Businesses critical or incidental to the construction or operation of critical infrastructure

3. Critical Manufacturing

  • Food processing and manufacturing
  • Chemicals
  • Computers and components
  • Medical equipment and components
  • Pharmaceuticals
  • Sanitary products
  • Telecommunications
  • Microelectronics/semiconductors
  • Agriculture
  • Household paper products
  • Businesses producing products critical or incidental to critical manufacturing products
  • Manufacturing to support critical infrastructure identified

4. Critical Retail

  • Grocery stores, including food and beverage stores
  • Farm and produce stands
  • Gas stations and convenience stores
  • Restaurants and bars for takeout and delivery only
  • Marijuana dispensaries
    • Recreational marijuana dispensaries may offer curbside delivery only
  • Hardware, farm supply, and building material stores
  • Establishments engaged in the retail sale of food and any other household consumer products

5. Critical Services

  • Trash, compost, and recycling
  • Mail and shipping services
  • Self-serve laundromats; garment and linen cleaning services for critical businesses
  • Building cleaning and maintenance
  • Child care services
  • Auto supply and repair
  • Warehouse
  • Funeral homes, crematoriums, and cemeteries
  • In-person pastoral services for individuals in crisis or need of end of life servicing, while complying with 6-feet social distancing to extent possible
  • Storage for critical businesses
  • Animal shelters, zoos, animal sanctuaries, and other related facilities

6. News Media

7. Financial Institutions

  • Banks and credit institutions
  • Insurance
  • Payroll
  • Accounting
  • Services related to financial markets

8. Providers of Basic Necessities to Economically Disadvantaged Population

  • Homeless shelters and congregate care facilities
  • Food banks
  • Human services providers

9. Construction

  • Housing
  • Skilled trades
  • Services necessary to maintain safety, sanitation, and critical operation of residences and other essential services

10. State, Local, and Federal Government Defense

11. Critical Services Necessary to Maintain the Safety, Sanitation and Critical Operations of Residences or Other Critical Businesses

  • Law enforcement
  • Fire prevention and response
  • Building code enforcement
  • Security
  • Emergency management response
  • Building cleaners and janitors
  • General maintenance
  • Auto repair
  • Disinfection
  • Snow removal

12. Critical Vendors

  • Logistics
  • Technology support for online and telephone services
  • Child care programs and services
  • Government owned or leased buildings
  • Critical government functions

Health clubs, fitness and exercise gyms, and similar facilities are expressly identified as non-critical businesses and are subject to the orders. PHO 20-24 also identifies several critical Colorado government operations that are not subject to the order. People at high risk for contracting COVID-19 and people who are sick are urged to stay in their residence to the greatest extent possible, unless to seek medical care.

EO 2020 D 013 can be found in full here, and PHO 20-24 can be found in full here.

Denver Stay-at-Home Order

Essential businesses, listed below, are not required to cease operations. Health care exemptions are construed broadly, but do not include health clubs, fitness and exercise gyms, or similar facilities. Malls may only remain open to the extent to allow operation and access to essential businesses.

1. Health care Operations

  • Hospitals, clinics, and walk-in health facilities
  • Medical and dental care, except for elective procedure
  • Research and laboratory services
  • Medical wholesale and distribution
  • Home health care companies
  • Pharmacies
  • Pharmaceutical and biotechnology companies
  • Behavioral health care providers
  • Nursing homes, residential health care, or congregate facilities
  • Medical supplies, equipment manufacturers, and/or any ancillary healthcare services
  • All healthcare services provided to animals
  • Animal shelters and pet boarding services

2. Essential Infrastructure

  • Utilities
  • Water, sewer, gas, and electrical services
  • Public works construction
  • Government construction
  • Construction necessary to support or maintain the operation of any essential business
  • Skilled trades
  • Services necessary to maintain the safety, sanitation and essential operation of residences
  • Airport operations
  • Oil refining
  • Oil and gas operations
  • Roads and highways
  • Public transportation
  • Solid waste collection and removal
  • Internet and telecommunication systems

3. Essential Government Functions

4. Other Essential Businesses

  • Stores engaged in the retail sale of canned food, dry goods, fresh fruits and vegetables, pet supply, fresh meats, fish, and poultry, and any other household consumer products, including:
    • Grocery stores
    • Certified farmers’ markets
    • Farm and produce stands
    • Supermarkets
    • Food banks
    • Convenience stores
  • Food and plant cultivation
  • Businesses providing food, shelter, social services, and other necessities for economically disadvantaged or otherwise needy individuals
  • Newspapers, television, radio, and other related media services
  • Gas stations
  • Auto supply, auto repair, and related facilities
  • Banks and related financial institutions
  • Hardware stores
  • Services necessary to maintain the safety, sanitation, and essential operation of residences, essential activities, and essential businesses, including:
    • Plumbers
    • Electricians
    • Exterminators
  • Mail and shipping services
  • Educational institutions, provided social distancing of at least 6 feet per person to the greatest extent possible
  • Laundromats, dry cleaners, and laundry service providers
  • Restaurants and other facilities that prepare and serve food – for delivery, take out, or drive through only; except:
    • Schools and other entities that typically provide free food services to students or members of public on pickup or takeaway basis only
    • Facilities that serve food or beverages at airports, which may provide on-site dining, provided social distancing of at least 6 feet per person to the greatest extent possible
  • Businesses supplying products needed for individuals to work and learn from home (e.g., hardware or software essential for communications)
  • Support services for essential businesses
  • Businesses that ship or deliver groceries, food, goods, or services directly to residences
  • Airlines, taxis, and other transportation support providers
  • Home-based care for seniors, adults, or children
    • Nannies or babysitting services must (1) reside in the home for which they are providing care; (2) provide medical care to a person in the residence; or (3) provide care to allow parents or guardians of a child or senior to work for an essential business or perform an essential government function to comply with this order.
  • Residential establishments and facilities
  • Professional services when necessary to assist in compliance with legally mandated activities
  • Faith based establishments and houses of worship
  • Childcare facilities allowing employees exempted in the order to work as permitted, providing childcare in certain conditions
  • Licensed marijuana stores, provided physical distancing protocols are implemented to limit number of persons on the premises at the same time
  • Licensed liquor stores, provided physical distancing protocols are implemented to limit number of persons on the premises at the same time

Denver’s Stay-at-Home Order can be found here.

What Should Businesses Do?

First, businesses should determine whether any of their Denver offices are subject to the Denver Stay-at-Home Order and, if so, plan accordingly. Of note, there are several differences between the essential business designations in the Colorado Executive Order and the Denver Stay-at-Home Order, with the latter more restrictive. Mayor Hancock has indicated that he will deploy local law enforcement to determine compliance with the Stay-at-Home Order, including to businesses. Although a first incidence is unlikely to result in a fine or penalty, a second offense is likely to result in harsher punishment. Additionally, we advise businesses that are subject to the Stay-at-Home Order to keep in mind the Colorado HELP Rules, the Federal WARN Act, state and federal wage and hour laws (which remain applicable even during an employee’s remote work), state and federal discrimination and equal employment opportunity laws, the Families First Coronavirus Response Act (a more comprehensive analysis of which can be found here), and any other applicable employment laws when making decisions related to compliance with the Stay-at-Home Order.

If possible, businesses may apply to the CDPHE for certification that employees are further than 6 feet apart at all times during the work day and obtain an exemption from EO D 2020 013.

For businesses in Colorado outside of Denver, we recommend ensuring quick compliance with the mandate to reduce in-person work by 50 percent. Even though the enforcement language in EO D 2020 013 and PHO 20-24 are not particularly strong, a violation does carry the possibility of a fine or prison time (the circumstances of which are uncertain). Businesses who do not comply also face potential litigation from employees for requiring in-person work, particularly if employees have mandatory sick leave from recently-implemented laws (such as the FFCRA) or company-provided paid time off or sick leave available.

Even for Denver businesses that are exempt from the Stay-at-Home Order, we encourage efforts to allow employees to work from home to the extent possible and practicable, consistent with the statewide directive in EO D 2020 013 to increase work from home capabilities. Further, many employees may be hesitant to come into work due to fear of COVID-19, and requiring in-person work can create complications during this time.

Changes in Workforce

Whether or not your business is deemed “essential,” you may be considering changes to your workforce for employee safety and in response to the undeniable economic impact of the pandemic. Such changes may include furloughing employees, laying off employees, or reducing an employees’ rate of pay/hours.

We suggest you consider all available options carefully before making any decision, and refer to the following chart for an overview, with details below the chart. Whether notice is legally required as detailed below, we recommend all employers provide written notice to employees of their decision, including an explanation of the rationale and assurance that these measures are only being taken in response to the pandemic and with the ultimate goal of returning to business as usual in the near future. Goodwill toward your employees will go a long way in rebuilding.

Option

Description

Important Information

Furlough

§  Temporary suspension of employment during which employees do not receive wages

§  Those on furlough remain employed

§  Advise employees they must not work during the furlough period and employer should consider employer maintaining control over employer issued mobile devices and limiting or cutting off employee email access.

§  Employee receipt of continuation of health benefits dependent on health insurance policies, plan documents and other policies or agreements with employees. 

§  Employer may restrict the use of vacation/PTO during furlough.

§  Employee is entitled to federal sick pay under the Families First Coronavirus Response Act (FFCRA) if employer has 500 or fewer employees.

§  See below regarding more detail on the FFCRA.

§  Employees may receive Unemployment Compensation Insurance.

 

 

 

Layoff/

Termination

A layoff is the removal of an employee from the workforce, without any guarantee of returning to work.

 

A termination is a complete and permanent separation of employment.

§   Notice required if employer is subject to federal WARN Act.

§   Final pay due immediately upon discharge

§   If mailing checks, final pay due no later than 24 hours after the start of the business day next succeeding the date of discharge.

§   Employer need not pay out accrued sick leave at time of termination or layoff.

§   If you layoff or terminate a salaried employee, you need only pay them through the final day of work (unless contractually obligated otherwise).

§   Provide timely notice regarding COBRA benefits. 

 

 

 

Reduction in Pay

Reducing an employee’s hourly rate or prospective salary

§   Ensure you pay hourly, non-exempt, non-tipped employees minimum wage.

 

 

 

Reduction in Hours

Reduce hours for non-exempt employees and pay only the hours worked.

§   Take care not to reduce hours in a way that appears discriminatory – such as only for higher paid (and generally older) workers.

§   Employees may be receive Unemployment Compensation Insurance and workers who do not work may be entitled to unemployment benefits.

 

 

 

Work From Home

An employee is permitted to work remotely (out of the office), generally by accessing employer files through a virtual desktop.

 

§   Employers should look to their employee handbook and company policies and practices regarding reimbursement for such expenses as home internet, cell phone usage, printer ink, paper, and other relevant supplies. If required to pay, demand proof of incurred expenses.

§   Send clear directives to non-exempt employees to take and record rest breaks and meal periods.

§   EO D 2020 013, PHO 20-24, and the Stay-at-Home Order expressly permit non-essential employees to work from home, regardless of whether an essential or non-essential business.

 

Other Laws to Keep in Mind

Colorado HELP Rules

On March 11, 2020, Colorado issued Health and Emergency Leave with Pay (“HELP”) rules (7 CCR 1103-10). Employees in certain industries (leisure and hospitality, education, food services, child care, home health, nursing homes, and community living facilities) covered by the HELP rules are required to be given 4 days paid sick leave for testing of coronavirus. This is not on top of or in addition to any sick leave provided by an employer. If an employee already has 4 paid sick days provided by an employer, he or she will not get 4 extra.

New Federal Employee Sick Leave Law

The Families First Coronavirus Response Act (FFCRA) is effective April 1, 2020. Employers of up to 500 employees are required to provide Emergency Paid Sick Leave (EPSL) to their employees without regard for eligibility or time worked requirements.  Please note, if you allow an employee to go on leave (whether paid or unpaid) or furlough an employee (as opposed to a layoff), then your employees are entitled to this EPSL. 

Reasons for leave:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 – note this would include any employee subject to a shelter in place order provided they do not work for a business providing an essential service.  If your employees are working because they are providing an essential service, then the employee could not use EPSL to take time off for this particular reason. The following reasons may still apply.
     
  2. The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
     
  3.  The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
     
  4. The employee is caring for an individual who is subject to an order as described in subparagraph 1 above or has been advised as described in paragraph 2 above.
     
  5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to COVID-19 precautions.
     
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Hours of paid leave:

  1.   Full Time – 80 hours
  2.   Part Time – average hours for a 2-week period.                     

If you intend to have employees remain on staff who would be eligible for EPSL, contact one of our attorneys so we can guide you through how much to pay.  Your business may be entitled to tax credit for providing this type of leave.

As this law applies to employers with up to 500 employees, you may have questions about how this total is calculated.  If under the FMLA, your company and subsidiaries are considered integrated then it is true for FFCRA.  FMLA follows Title VII guidance for whether subsidiaries are integrated.  The factors to consider are:

§     interrelation of operations, i.e., common offices, common record keeping, shared bank accounts and equipment;

§     common management, common directors and boards;

§     centralized control of labor relations and personnel, i.e., hire and fire employees; and,

§     common ownership and financial control.

The factors are not evaluated as stand-alone.  The entire relationship is to be reviewed in its totality. 

Details on the FFCRA can be found here.

The full text of the act can be found here. The Emergency Paid Sick Leave act begins at page 46.

Unemployment Insurance

Governor Polis issued an executive order on Friday, March 20, 2020 to expedite unemployment payments. Workers may file a claim for unemployment benefits if they are either not working or are working fewer hours as a result of the COVID-19 pandemic.

Employers should be aware that the surge in claims has been so significant that the Department of Labor and Employment is staggering the days individuals should file claims by the first letter of the applicant’s last name. Applicants may file a claim and find information on how to file a claim at coloradoui.gov.


[1] All counties in the Denver metro area have also enacted stay-at-home orders. These orders contain the same orders for individuals and employers as in the Denver Stay-at-Home Order. The stay-at-home orders for Boulder, Adams, Arapahoe, Douglas, and Jefferson County all take effect on March 26, 2020 at 8:00 a.m. MDT and remain in effect until April 17, 2020 at 11:59 p.m. MDT. In addition, stay-at-home orders have been issued for Pitkin and San Miguel Counties and the City of Boulder in Colorado.

Visit our COVID-19 Hub for Ongoing Updates.