April 28, 2020
The Rocky Mountain Region COVID-19 Employment Update provides information about COVID-19 orders in Colorado, Idaho, Montana, Nebraska, New Mexico, Utah and Wyoming. This update includes information current to April 28, 2020.
General Advisements
– In many situations, federal, state, and local cities or counties may have orders or regulations covering the same legal areas. Generally, the federal, state and local orders all apply in such a situation, so follow the most restrictive law. This is especially important for the stay-at-home or shelter-in-place Orders. If your city or county has issued a stay-at-home Order, but your State has not, you must comply with the city or county order. There may be some instances in which federal law could preempt State law, and we recommend you seek specific counsel in those situations.
– Companies should consider the potential for claims against Directors & Officers, Errors & Omissions, Management Liability, or any form of Professional Liability Insurance policies, including Healthcare Professional Liability policies. Claims could be made against managers, directors, officers, or professionals for a failure to make decisions that would have prevented the spread of disease. Potentially more costly could be claims by investors, who have seen the value of their holdings dwindle, seeking to assert claims against officers alleging that a lack of response (or inadequate response) led to a reduction in share price. Policyholders will argue that pollution exclusions have limited effect against such claims.
– Even if no shelter-in-place or stay-at-home orders have been issued for your location, companies should be wary of requiring employees to work in dangerous work environments that could be created if guidelines are not followed or in place. While there is no specific OSHA standard governing COVID-19, the General Duty Clause, requiring employers to provide “a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm,” still applies. We recommend all companies follow the OSHA Guidance on Preparing Workplaces for COVID-19 and the CDC Environmental Cleaning and Disinfection Recommendations.
– On the federal level, the Families First Corona Virus Response Act requires that companies with fewer than 500 employees give full-time employees 80 hours of paid sick leave and also provide part-time employees with some paid leave. The Act generally applies to anyone who has coronavirus, is in quarantine or caring for someone in quarantine, or is caring for a child under 18 whose school is closed as a result of the outbreak. There are caps on the payouts: $511 per day for employees with the virus or in quarantines and $200 per day for employees caring for someone in quarantine or a child. Employers are eligible to be reimbursed for with a tax credit to leave paid out to employees under the law.
– On March 27, 2020, President Trump signed the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act – the Federal government’s third aid package intended to keep businesses and individuals afloat during this unprecedented freeze on American life – into law. For more details see the complete advisory here.
State-by-State Analysis
Note: The exemptions to the limits on gatherings and essential work places vary on both a state and local level. To determine if your business is considered an essential/critical business and the requirements such essential businesses must comply with (e.g., social distancing, shift staggering), please continue to read on below.
Colorado
Governor Jared Polis declared a state of emergency in Colorado on March 10, 2020 and issued Executive Order D 2020 003 on March 11, 2020 reflecting this emergency declaration.
|
Paid Leave |
State Suspension of Other Regulatory Activities |
State Limits on Gatherings and Work Places |
City and County Limits on Gatherings and Work Places |
WARN Act |
|
Health and Emergency Leave with Pay (“HELP”) rules (7 CCR 1103-10) Employees in specified industries (leisure and hospitality, real estate, offices and office work, elective medical, health, and dental services, personal care services, education, food services, food and beverage manufacturing, retail, 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 or for instructions to quarantine or self-isolate due to risk 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. |
Taxes (D 2020-010 and D 2020-040) – Suspends the tax deadline and directs the Colorado Department of Revenue to extend the income tax deadline and estimated tax payments to July 15, 2020 – applies to all individuals and businesses Restaurants and Marijuana (D 2020-011 and D 2020-29) – Suspends certain regulations for businesses in the alcohol and marijuana industries to allow businesses to adapt to the restrictions of social distancing, including allowing businesses to deliver alcohol and suspending physical exams for medical marijuana cards Bars, Restaurants, Casinos, Gymnasiums, and Movie Theaters (PHO 2020-022) – Closes bars and restaurants for on-premises dining; takeout and delivery services allowed – Closes gymnasiums, casinos, cigar bars, movie theaters, and concert halls (D 2020-12 and D 2020-31) – Seeks to prevent evictions, foreclosures, and public utility disconnections – Allocates $1 million to improve and expedite the process of unemployment applications – Aims to provide benefits to worthy applicants within 10 days of filing Suspensions of Property Tax Requirements (D 2020-22) – Suspends enforcement of certain statutes pertaining to taxable property requirements for taxpayers Order for Workers to Wear Non-Medical Facemasks (D 2020-39 and PHO 20-26) (effective through May 17, 2020) – All critical business workers ordered to wear non-medical face coverings – All critical business workers recommended to wear gloves when in contact with customers or goods |
Safer at Home (D 2020-44 and PHO 20-28) (effective through May 27, 2020) – No gatherings of more than 10 people – “Vulnerable Individuals” directed to stay at home: 1. Age 65 or older 2. Chronic lung disease or moderate to severe asthma 3. Serious heart conditions 4. Immunocompromised 5. Pregnant women 6. Those designated high risk by healthcare provider – All individuals who are sick or who test positive for COVID-19 directed to stay at home except as necessary to care for themselves or seek medical care – Employers directed to accommodate by promoting telecommuting, remote work capabilities, or flexible work schedules specifically for workers with childcare responsibilities, Vulnerable Individuals, or those who live with Vulnerable Individuals – Employer discrimination prohibited against those with symptoms or who test positive for COVID-19 and must provide accommodations – Non-critical businesses may open May 1 with conditions in PHO 20-28 – Non-critical businesses may have up to 50% in-person workforce with social distancing requirements beginning May 4 – Excepted Colorado counties with variance: Eagle County Implementing Social Distancing Measures (Public Health Order 20-23) Closure of Downhill Ski Areas (D 2020-004, D 2020-006, and D 2020-026) – Ski area operations to be closed until April 30, 2020 Multi-Industry Construction Guidance – Includes requirements to maintain social distancing on construction sites and limits crew size |
(extended through May 8, 2020) Exclusions: 1. Health care Operations 2. Essential Infrastructure 3. Essential Government Functions 4. Other Essential Businesses Adams and Arapahoe Counties (extended through May 8, 2020) – Extends Colorado Executive Order 20-24 and Public Health Orders 20-24 and 20-22 for Adams and Arapahoe Counties – Allows non-critical businesses to offer curbside delivery of products – For more detailed information, see GRSM detailed article Boulder County (extended through May 8, 2020) – Extends EO D 2020-24 and PHO 20-24 – Allows non-critical businesses to offer curbside delivery of products Broomfield County (extended through May 8, 2020) Chaffee County (allowing certain businesses to begin opening May 1, 2020) Jefferson and Gilpin Counties (extended through May 8, 2020) – Also allows non-critical businesses to offer curbside delivery San Miguel County (effective until May 1, 2020) (effective through May 8, 2020) – visitors must return home immediately – No alcohol sales allowed unless on a “package basis” if not otherwise prohibited – Employees required to be screened every day for COVID-19 symptoms – Businesses must provide for proper hand sanitation and follow CDC guidelines on cleaning – Allows for a review of “those aggrieved or affected by this Order” by filing an action within 90 days |
|
No mini-WARN ActIdaho
Governor Little declared state of emergency on March 13, 2020.
|
Paid Leave |
State Suspension of Other Regulatory Activities |
State Limits on Gatherings and Work Places |
City and County Limits on Gatherings and Work Places |
WARN Act |
|
No additional guidance |
Unemployment Changes • Idaho Department of Labor has clarified if coronavirus causes an employer to temporarily or permanently shut down operations, unemployment benefits are available to individuals who are unemployed through no fault of their own. If an employer must shut down operations and no work is available, individuals may be eligible for unemployment benefits • If an employ receives unemployment benefits as a result of a coronavirus-related business shutdown, this could impact the employer’s unemployment taxes as there are currently no provisions to waive charge requirements as a result of the coronavirus at this time |
Idaho Dept. of Health and Welfare, Order of the Director – March 25, 2020, Amended on April 15, 2020 The stay at home order has been extended until April 30, 2020 • Directs all individuals living in the state of Idaho to self-isolate at their place of residence – Except that they may leave to provide or receive certain essential services or engage in certain essential activities and work for essential business and government services – Exempts individuals experiencing homelessness from the self-isolation order but urging them to find shelter and government agencies to provide it – Directs all businesses and governmental agencies to cease nonessential operations at physical locations in the State of Idaho – Prohibits all non-essential gatherings of any number of individuals – Orders cessation of all non-essential travel Essential facilities will remain open: •grocery stores •healthcare facilities • gas stations • pharmacies • essential state and local government functions • laundromats/laundry services • financial institutions • residential and home-based care • veterinary services • hardware stores • limited child care for essential workers • infrastructure • other businesses essential to the safety and wellbeing of the residents (defined further in Order) •Restaurants open, but only for drive-thru, carry-out, or delivery |
– Supplements Idaho Self-Isolation Order for golf courses, supermarkets, parks and open spaces, airports, and social distancing requirements |
Idaho has no mini-WARN Act |
Montana
On March 12, 2020, Montana Governor Steve Bullock declared an emergency in the State of Montana with regards to the COVID-19 pandemic in Executive Order 2-2020 and extended the state of emergency on March 14, 2020 in Executive Order 3-2020.
|
Paid Leave |
State Suspension of Other Regulatory Activities |
State Limits on Gatherings and Work Places |
City and County Limits on Gatherings and Work Places |
WARN Act |
|
Adoption of Temporary Emergency Rules related to Unemployment Benefits (1) A claimant directed by the employer to leave work or not report for work due to the employer's response to the COVID-19 pandemic, including COVID-19 induced reduction in demand or availability of materials, is deemed to have been temporarily laid off by the employer (2) A claimant subject to a COVID-19 quarantine is deemed to be laid off by the employer during the period of the quarantine (3) A claimant who is a caregiver of a family member who is the subject of a COVID-19 quarantine is deemed, in order to further the public health, safety, and welfare, to also be subject to a COVID-19 quarantine (4) When a claimant has experienced a temporary layoff due to the COVID19 pandemic, pursuant to (1), (2), or (3), the claimant is deemed to be able, available, and seeking suitable work when: (a) the employer intends to recall the claimant to work at the end of the temporary layoff; and (b) the claimant intends to return to work when recalled by the employer and takes reasonable measures to maintain contact with the employer (5) A claimant laid off as the result of being subject to a COVID-19 quarantine is ineligible for benefits if the claimant refuses work that can be performed while complying with the terms of the quarantine |
April 22, 2020 • People arriving in Montana for non-work-related purpose must immediately self-quarantine for 14 days • The quarantine restrictions do not apply persons traveling through Montana en route to another destination; or to public health, public safety, or healthcare workers |
Montana has no mini-WARN Act |
Nebraska
On March 13, 2020, Governor Pete Ricketts issued an executive order (20-01) declaring a state of emergency and emergency relief for state and federal length and weight hauling requirements through May 1, 2020.
|
Paid Leave |
State Suspension of Other Regulatory Activities |
State Limits on Gatherings and Work Places |
City and County Limits on Gatherings and Work Places |
WARN Act |
|
Unemployment • waives employer-related contribution requirements to unemployment benefits for claims related to COVID-19 through May 2, 2020. • suspends short-term compensation plan requirements for employers Income Tax • The deadline to file state income taxes has been extended from April 15, 2020 to July 15, 2020 Executive Order 20-01 • Haulers of food, supplies, and equipment are allowed to operate additional hours. • No motor carrier shall require or allow an ill or fatigued driver to operate a motor vehicle. • A driver who notifies a motor carrier that he or she needs immediate rest shall be given a least ten (10) consecutive hour's off-duty before the driver is required to return to service. • Drivers must carry a copy of the Order with them as evidence of their direct support to the state • Carries not directly supporting pandemic response efforts in the state, or that have an Out-Of-Service Order in effect, may not take advantage of the relief from regulation that such a declaration provides under 49 CFR 390.23 |
Ban of Gatherings and Closing of Bars and Restaurants – Statewide ban on gatherings of more than 10 people – Effective date depends on county, either through April 30, May 6, or May 11 – Closes bars, restaurants, and the like, except for carryout or delivery – Directs individuals with symptoms to quarantine at home for at least 14 days – Closes salons, barber shops, movie theaters, gentleman’s clubs, indoor theaters, and tattoo parlors – Exceptions for • Healthcare facilities • Office buildings, traditional office settings, or manufacturing facilities • Logistics/Distribution • Congregate Living Settings • Shelters • Public Transportation and Airport Travel • Fuel Stations • Stores or Malls • Family Residences housing 10 or more people |
Nebraska does not have a mini-WARN Act |
New Mexico
New Mexico Governor Michelle Lujan Grisham declared a State of Emergency on March 11, 2020, and extended the state of emergency through April 30, 2020 in Executive Order 2020-022.
|
Paid Leave |
State Suspension of Other Regulatory Activities |
State Limits on Gatherings and Work Places |
City and County Limits on Gatherings and Work Places |
WARN Act |
|
No additional guidance |
Employees may qualify for unemployment benefits if they: • are laid off due to the impact of COVID-19 • are required to self-quarantine as a precaution against the spread of COVID-19 or have an immediate family member who is quarantined due to COVID-19; or • have their hours reduced as a result of COVID-19 • Voluntary resignation from employment due to lack of child care is a disqualifying event for receipt of unemployment benefits, even where the lack of childcare is due to the impact of COVID-19 • Voluntary separation from employment for fear of contracting COVID-19 is a disqualifying event • Benefits are available to employees regardless of full-time or part-time status if the event the employee’s hours are reduced due to lack of business related to COVID-19 as long as the employee’s earnings are under the weekly benefit amount • waived the work search requirement for four weeks (employers will be automatically charged for four weeks of unemployment benefit payment upon approval of a claimant’s request for benefits) – no waiver of one-week waiting period before benefits are provided Renewal Extension of March 11, 2020 Order April 6, 2020 •Renews the statewide public health emergency proclaimed on March 11, 2020 and extends the public health emergency through April 30,2020 April 2, 2020 Order • Permits the New Mexico Department of Health (NMDOH) to allow Canadian nursing professionals who are licensed and in good standing to work in any New Mexico healthcare facility during the Pendency of the COVID-19 pandemic • Delegates determination of assessing the qualifications of Canadian nursing professionals to NMDOH •Authorization of the Canadian nursing professionals or registered nurse must be in writing and is valid for six months from the date of issue •Canadian nursing professionals who receive written authorization from NMDOH shall be immune from civil or criminal liability for practicing without a license during the period of authorization Aging and Long-Term Services Department • Authorizes emergency funds for the Aging and Long-term Services Department to assist in relief efforts during the state wide public health emergency due to COVID-19 Additional Emergency Funds for Homeland Security and Emergency Management April 2, 2020 Order • Authorizes additional emergency funds for the Department of Homeland Security and Emergency Management to assist in and coordinate relief efforts during the statewide public health emergency due to COVID-19 March 31, 2020 Order • Directs the New Mexico Department of Transportation (NMDOT) to create a streamlined process for Emergency Expedited Special Permits (EESP) that would allow overweight vehicles and loads that can be easily dismantled or divided to travel in New Mexico between March 31, 2020 and July 1, 2020 • In Order to be eligible for an EESP an applicant must: (1) provide NMDOT with information regarding weight, manifest, destination and route; and (2) deliver primarily relief supplies • Relief supplies include food, beverages, medicine, medical supplies, clothing, building materials for temporary structures or shelters, and any other materials NMDOT determines are primarily for disaster relief •No fees for EESP’s Temporary Waiver of Motor Vehicle Fees and Penalties March 30, 2020 Order • Directs Secretary of the Taxation and Revenue Department (TRD) to instruct the Motor Vehicle Division (MVD) to waive collection of all late fees and other penalities triggered by failure of an applicant to timely submit an application or other required documentation for registration, license, permit, or other privilege under the Motor Vehicle Code • Applies to those applicants who could have submitted their documentation without penalty as of March 11, 2020 until a reasonable period of time after the reopening of MVD offices • Directs the Secretary of TRD to provide public notice of the waiver and its duration • Directs the Department of Public Safety not to issue citations for expired registrations, licenses, permits or other privileges under the Motor Vehicle Code • Motor Vehicle Code license, registration, and permitting requirements remain in effect March 30, 2020 Order – Directs the Notary Compliance and Enforcement Unit (NCEU) to not recommend any form of discipline for any notary who performs a notarial act through audio-video technology provided that the following conditions are met: (1) the technology used provides for direct interaction between the person seeking the notary’s services, the notary, and any required witnesses, and each party must affirmatively state that he or she is located in New Mexico during the video conference; (2) If the person seeking the notary’s services or any witnesses are not personally know to the notary, each person who is not personally known must present satisfactory evidence of identity (valid state-issued photo identification) during the video conference; and (3) Person seeking the notary’s services must transmit by fax or electronic means a legible copy of the signed document directly to any required witnesses and then to the notary on the same day it was signed; and (4) Once the notary has received a legible copy of the document with all necessary signatures, the notary may notarize the document and transmit notorized document back to the person seeking the notary’s services •The requirements above apply only to all notarial acts performed between March 30, 2020 and June 20, 2020 March 27, 2020 Executive Order • Requires people traveling to New Mexico through an airport to self-isolate or self-quarantine for the shorter of either a) 14 days after entry or b) duration of stay in NM Use of Additional Emergency Funds March 27, 2020 Order •Authorizes additional emergency funds for the Department of Health to purchase personal protective equipment, testing supplies, and other necessary materials to address the COVID-19 Epidemic Temporary Restriction on Non-essential Health Care Services March 24, 2020 Public Health Order • Prohibits non-essential health care services, procedures, and surgeries • Non-essential means procedures which can be delayed for 3 months without undue risk • Does not apply to emergency medical care, surgery that if not performed would result in a serious condition of worsening, and family planning services • Requires health care providers to provide NMDH with policy addressing compliance Temporary Regulation of the Sale and Distribution of PPE March 24, 2020 Public Health Order • Restricts health care providers and medical suppliers with an inventory of PPE from reducing its inventory via selling, distributing, etc. without prior approval from NWHD • Doesn’t apply to use of PPE or over-the-counter sales to individuals • Requires each provider and supplier to report inventory of PPE to NMHD |
New Mexico Department of Health (NMDOH) Order April 11, 2020 • Suspends operations of all businesses and nonprofit entities except for those deemed essential, and further restricts mass gatherings – A “mass gathering” is defined as 5 or more people within 6 feet of one another who are not public employees or officials or who are not at their place of residence The following changes have been made to the definition of “essential business”: •Expands veterinary and livestock operations to include services necessary to avoid an emergency vaccinations • Drops “beverage stores” from the definition of grocery and food stores • Adds “transportation network companies” to the infrastructure definition • Adds “bike repair facilities” and related retail • Adds automobile dealerships provided that they conduct sales virtually • Adds operations of “any federal entity” • Expands the definition of logistics to include deliveries to essential businesses and the government but adds that such businesses cannot provide curbside pickup services to the general public for online or telephonic orders Other Changes as a result of the April 11 NMDOH Order: • Retail space may only permit 20% occupancy by customers • Hotels, motels, and other places of lodging shall operate at 25% capacity. Health care workers, individuals using places of lodging for a temporary or extended stay, or individuals using places of lodging for purposes of a quarantine isolation period do not count towards the 25% occupancy limit • Short-term vacation rentals are not permitted to operate except to house out of state health care workers • The directive to reduce in-person workforces at call centers by 100% also applies to essential businesses • Safe storage facilities are directed to reduce operations to the minimum number of employees, including a 100% reduction in permanent on-site workforce whenever possible • This order does not apply to animal welfare entities such as shelters and zoos but those operations must be performed with the minimum number of employees and with strict adherence to social distancing protocols |
No mini-WARN Act |
Utah
On March 6, 2020, Governor Gary R. Herbert issued an executive order declaring a state of emergency due to the infectious disease COVID-19 novel coronavirus. By joint resolution (H.J.R. 24), the Utah legislature extended the state of emergency to June 30, 2020.
|
Paid Leave |
State Suspension of Other Regulatory Activities |
State Limits on Gatherings and Work Places |
City and County Limits on Gatherings and Work Places |
WARN Act |
|
No additional guidance |
Business Restrictions and Guidance Food Service • closing dine-in services restaurants, bars, and the like • Takeout service is only allowed if purchased remotely by electronic means • Takeout orders within the establishment are prohibited. • Drive-thru service permitted • online payment strongly encouraged • Employees who handle cash or credit cards must use cleansing measures between transactions, including using best practices issued by the Department. These employees cannot participate in food preparation, handling and delivery Hotels • Not allowed to serve complimentary meals unless the meals are pre-packaged and to be taken outside of common areas Convenience stores • Not prohibited from serving hot food items or a self-serve drink 3rd Party Delivery Services • permitted • employees must use cleansing measures with each transaction • may not deliver if presenting any symptoms consistent with COVID-19 Long Term Care • to follow guidance issued by Centers for Medicare and Medicaid Services, Center for Clinical Standards and Quality. Order to Postpone All Elective Surgeries/Procedures • Effective March 25, 2020 at 12:01 a.m. until April 25, 2020 at 11:59 p.m. |
Public Health Order 2020-05 • In place through May 1, 2020 • Stay home except to engage in essential activities or to work in essential business, infrastructure, and/or governmental services • All businesses must practice social distancing • Prohibits all public and private gatherings for any number of people • Closes places of public amusement and activity, salons, and spas • Restricts food services to take-out and drive-through • Discourages all non-essential travel • Permitted activity: health and safety, supplies and services, outdoor activity, certain types of work, provide care for others, essential travel • Provides addendums with more specific “essentials” Davis County (effective through May 1, 2020) Carbon, Emery, and Grand Counties (effective through May 1, 2020) Summit County – Stay at Home Order (effective through May 1, 2020) – Public Health Order on restaurants and other public establishments (extended through May 1, 2020) – Public Health Order on gatherings and additional business industries (effective through May 1, 2020) Tooele County (effective through April 30, 2020) Daggett, Duchesne, and Uintah Counties (effective through May 1, 2020) Utah County (effective through May 1, 2020) Wasatch County (effective through May 1, 2020) Weber and Morgan Counties (effective through May 1, 2020) |
Utah has no mini-WARN Act. |
Wyoming
Wyoming Governor Mark Gordon declared a state of emergency on March 13, 2020. Counties may seek variances of State orders. State COVID-19 Website.
|
Paid Leave |
State Suspension of Other Regulatory Activities |
State Limits on Gatherings and Work Places |
City and County Limits on Gatherings and Work Places |
WARN Act |
|
• Extended to April 30, 2020 • Closure of all restaurants, coffeehouses, bars, theaters, K-12 schools, colleges, universities, and trade schools • Restaurants may offer take out, drive-through, and delivery. • Alcohol may be included with pickup orders. • Up to 5 members of the public may be allowed at a one time for pick up and must stay 6 feet apart. • Gymnasiums and childcare services allowed to reopen on May 1, 2020 with conditions |