Publication

March 26, 2020;
Updated March 28, 2020 to reflect new guidance from the U.S. Department of Labor

One day after Colorado’s in-person workforce reduction order went into effect, Governor Jared Polis announced a statewide stay-at-home order for Colorado. The Stay-at-Home Order (Executive Order D 2020 017) supersedes Executive Order 2020 D 2020 013, which directed non-critical businesses in Colorado to reduce their in-person workforce by at least 50%. The Colorado Department of Public Health and Environment (CDPHE) issued Amended Public Health Order 20-24 in conjunction with Executive Order (EO) D 2020 017.

EO D 2020 017 expressly does not prevent any local public health authority from enacting orders “more protective of the public,” and any “stay-at-home” or similar orders issued by a local jurisdiction in Colorado remain in full force and effect. This means that the stay-at-home orders issued previously by Adams, Arapahoe, Boulder, Denver (City and County), Jefferson, Larimer, Pitkin, and San Miguel Counties are not superseded and govern their respective jurisdictions in the more restrictive aspects.

When Do the Orders Take Effect?

EO D 2020 017 and Amended Public Health Order 20-24 take effect on March 26, 2020 at 6:00 a.m. Mountain Daylight Time (MDT). The orders remain in effect until April 11, 2020 at 11:59 p.m., unless extended, superseded, rescinded, or amended in writing.

What Do the Orders Mean?

EO D 2020 017 directs all Colorado residents to stay at home whenever possible and directs all businesses, other than those identified as critical businesses in Amended Public Health Order 20-24, to temporarily close, except as necessary to engage in minimum basic operations needed to protect personnel functions and to protect assets. Minimum basic operations are those that (1) maintain the value of inventory, ensure security, process payroll and employee benefits, or for related functions; or (2) facilitate employees being able to continue to work remotely from residences.

Individuals may leave their residences only to perform necessary activities, and individuals residing in shared or outdoor spaces must at all times comply with social distancing requirements to the greatest extent possible. The Orders prohibit all public and private gatherings of any number of people outside a residence, except when performing necessary activities. The social distancing requirements consist of (1) maintaining at least 6-feet physical distance; (2) washing hands with soap and water for at least 20 seconds as frequently as possible (or using hand sanitizer); (3) covering coughs or sneezes (not with hands); (4) regular cleaning of high-touch surfaces; and (5) no hand shaking.

Individuals experiencing symptoms of COVID-19 are directed to self-isolate until the symptoms cease or until they have a negative test result. The Orders encourage individuals who have tested positive for COVID-19 and/or developed symptoms (including early or mild symptoms such as cough and shortness of breath) to be in isolation until they have not had a fever for at least seventy-two (72) hours, other symptoms have improved, and at least seven (7) days have passed since symptoms first appeared.

Critical businesses are ordered to comply with social distancing requirements at all times and are encouraged to implement tele-work or other strategies, such as staggered schedules or re-designing workplaces, to create more distance between workers unless doing so would make it impossible to carry out critical functions. Additionally, critical businesses must follow guidance and directives for maintaining a safe work environment issued by CDPHE and any governing local health department. Critical businesses such as grocery stores and other critical retail must comply with social distancing requirements at all times, including when any customers are standing in line.  

A violation of the Orders can result in a fine of up to $1,000 and/or imprisonment up to one (1) year.

Who Do the Orders Apply To?

The critical businesses identified in Amended Public Health Order are:

1. Healthcare Operations

2. Critical Infrastructure

3. Critical Manufacturing

4. Critical Retail

5. Critical Services

6. News Media

7. Financial and Professional Institutions

8. Providers of Basic Necessities to Economically Disadvantaged Population

9. Construction

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

12. Critical Vendors

13. Educational Institutions that Provide Critical Services to Students and the General Public

Additional information on critical businesses can be found on our March 24 update, here. More business sectors were given designations as critical business in EO D 2020 017 than in Colorado’s in-person workforce reduction order (EO D 2020 013), and businesses should review the Colorado Stay-at-Home Order to observe whether their sectors are included as critical businesses.

Health clubs, fitness and exercise gyms, and similar facilities are expressly identified as non-critical businesses and are subject to the orders. Amended Public Health Order 20-24 also identifies several critical Colorado government operations that are not subject to the order.

EO 2020 D 017 can be found in full here.

Amended Public Health Order 20-24 can be found in full here.

What Should Businesses Do?

Because EO 2020 D 017 expressly permits local public health authorities to enact more restrictive and protective orders and clarifies that local public health orders already enacted remain in full force and effect, businesses should first check the orders issued by the relevant authority to determine any conflict with the statewide stay-at-home directives in EO 2020 D 017.[1]

We recommend full compliance with any applicable stay-at-home orders. Even though first offenses are unlikely to result in fines, a second offense could result in a harsher penalty and bad press. 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.

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.

Even for businesses that are exempt from the applicable stay-at-home orders, 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 017 to implement tele-work strategies. 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 chart found here for an overview. 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 the 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 Sick Leave Law

The Families First Coronavirus Response Act (FFCRA) becomes effective April 1, 2020.

• Employers of up to 500 employees (see below for calculation method) must provide 80 hours of paid sick leave for full time employees (average hours worked over two weeks for part time) if there is work for the employee available and the employee is unable to work (or telework) because:

1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.  (This includes any government order directing people to remain at home unless they work for an essential business);
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; or
5. The employee is caring for a child of such employee if the school or place of care for the child has been closed, or the childcare provider for the child is unavailable, due to COVID-19 precautions.

• If your business closed before or after April 1 due to lack of business, or if required to close pursuant to Federal, State or local directive, sick leave is not due.
   
• Intermittent sick leave is permitted with the consent of the employer (it is not required).
   
• If business closes while an employee is on FFCRA sick leave, they must be paid for leave through the date of closure.
   
• Businesses with less than 50 employees are potentially exempt from providing sick leave pursuant to reasons four and five above (as amended by the CARES Act) and should document any hardship presented by providing this leave (after considering the impact of potential tax credits) and wait for further guidance from the DOL.
   
• Employees may use FFCRA paid sick leave before using state or local paid sick leave, or accrued PTO.
   
• Paid leave provided prior to April 1, 2020, does not count to fulfill obligations under the FFCRA.
   
• Employers must require documentation in support of the reason for leave and include:  
  • Employee’s name, qualifying reason for requesting leave, statement that the employee is unable to work, including telework, for that reason, and the date(s) for which leave is requested; and
  • Documentation including a copy of the Federal, State or local quarantine or isolation order related to COVID-19 applicable to the employee (reason 1 above) or written documentation by a health care provider advising the employee to self-quarantine due to concerns related to COVID-19 (reasons 2 to 4 above) or notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider (reason 5 above). 
     
• If you intend to claim a tax credit under the FFCRA for payment of sick leave wages, you should retain the FFCRA documentation in your records.

How Much to Pay – Employees must be paid based on their required compensation as follows:

• Regular rate of pay subject to a limit of: $511 per day and $5,110 in the aggregate for a use described in paragraph (1), (2), or (3) above; or
• Two-thirds of the regular rate of pay subject to a limit of: $200 per day and $2,000 in the aggregate for a use described in paragraph (4), (5), or (6) above.

Emergency Federal Medical Leave Expansion Act 

The Emergency Federal Medical Leave Expansion Act ("EFMLE") becomes effective April 1, 2020.

• The EFMLE applies under the following circumstances:

1. The EFMLE applies to employers with fewer than 500 employees (see below);
2. Employees must be employed at least 30 calendar days at the time leave is requested;
3. The need for leave must be a Qualified Need Related to A Public Health Emergency (“PHE”);
4. A PHE exists when declared by a Federal, State or local authority due to COVID-19; and
5. The employee must be restored to their position upon return from leave.

• An employee can request this leave for a very narrow reason: if there is work for the employee and they are unable to work (or telework) due to the need to care for their child under 18 years of age if the child’s elementary or secondary school or place of care is closed, or the care provider of such child is unavailable, due to a PHE.
   
• Intermittent expanded medical leave is permitted with the consent of the employer (it is not required).
   
• If your business closed before or after April 1 due to lack of business or if required to close pursuant to Federal, State or local directive, expanded medical leave is not due.
   
• If your business closes while an employee is on expanded medical leave, employees must be paid for leave through the date of closure.
   
• Businesses with less than 50 employees are potentially exempt from providing sick leave pursuant to reasons four and five above (as amended by the CARES Act) and should document any hardship presented by providing this leave (after considering the impact of potential tax credits) and wait for further guidance from the DOL. 

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.

Please visit our COVID-19 Hub for ongoing updates.

[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, a summary of which can be found here.  The stay-at-home orders for 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. Larimer County’s stay-at-home order is effective March 26, 2020 at 5:00 p.m. MDT through April 17, 2020. In addition, stay-at-home orders have been issued for Pitkin and San Miguel Counties and the City and County of Broomfield in Colorado.