Colorado Executive Order Creates New Requirements for Employer Accommodations, Mask Usage

Gov. Jared Polis signed an Executive Order on July 9, 2020, implementing new coronavirus-related protections for employees in Colorado. The Executive Order, titled “Protect Our Neighbors,” took effect immediately and imposes the following notable restrictions on employers:

• individuals at risk of severe illness from COVID-19 cannot be compelled to perform in-person work for any business or government function, including a critical business or critical government function; and
• employers must provide reasonable accommodation to, and are prohibited from discriminating against, employees who are showing symptoms of COVID-19 or who have been in contact with a known positive case of COVID-19.

Individuals in the following categories are considered “at risk of severe illness from COVID-19”:

1. individuals who are 65 years and older;
2. individuals with chronic lung disease or moderate to severe asthma;
3. individuals who have serious heart conditions;
4. pregnant women; and
5. individuals determined to be high risk by a licensed health care provider.

Additionally, the Executive Order called for the issuance of a Public Health Order (PHO) by the Colorado Department of Public Health and Environment. The PHO, which was issued on July 10, is effective from July 6, 2020, through Aug. 5, 2020. It includes, among other terms, provisions that:

• require all employers to make work accommodations for individuals at risk of severe illness from COVID-19 (offering “telecommuting” as an example of such an accommodation);
• require employers to provide “to the greatest extent possible” flexible or remote scheduling for employees who may have child or elder care obligations or who live with those who are required to self-isolate due to an underlying condition, age or other factor;
• encourage employers to accommodate individuals living in the same household as an individual at risk of severe illness from COVID-19;
• require employers to phase work shifts and breaks to reduce employee density; and
• require employers to provide employees with protective gear such as gloves, masks and face coverings.

On July 16, 2020, Gov. Polis signed another Executive Order requiring the wearing of nonmedical masks, covering an individual’s mouth and nose in all public indoor spaces. This Executive Order, titled “Statewide Mandatory Mask Order,” took effect at midnight on July 16 and applies to the following public indoor spaces:

• Government buildings
• Nonprofits
• Public and private transportation
• Houses of worship
• Private country clubs or social clubs
• Grocery stores
• Hair salons
• All offices, lobbies and elevators
• Malls and retail stores
• Indoor businesses and common areas
• Medical facilities and nursing homes
• Restaurants (if not seated)
• Libraries
• Museums
• Theaters
• Casinos
• Gyms, including areas around pools but not while swimming in the pool
• All enclosed indoor areas, whether publicly or privately owned or managed, except an individual’s residence

In addition, if a business provides services or goods both indoors and outdoors at a single location, a mask must be worn in the indoor portion of that business or entity.

This Executive Order states that businesses must refuse service to people who are not wearing masks in violation of the Executive Order. In addition, businesses must post signs at entrances that instruct customers they must wear a mask when entering or moving around inside the business.

Under the Executive Order, people do not have to wear a mask when they are:

• in their own residence, including a hotel room or a residential room for students at an educational facility;
• hearing-impaired or otherwise disabled or who are communicating with someone who is hearing-impaired or otherwise disabled, and where the ability to see the person’s mouth is essential for communication;
• seated at a food service establishment;
• exercising alone or with others from the individual’s household, and a face-covering is necessary to perform the activity;
• entering a business or receiving services and are asked to temporarily remove a face covering for identification purposes;
• are actively engaged in a public safety role such as law enforcement, firefighters or other emergency personnel;
• officiating at a religious service; or
• giving a speech for broadcast or an audience.

Armstrong Teasdale attorneys are actively monitoring and providing updates regarding the impact of COVID-19. For additional information, visit Armstrong Teasdale’s COVID-19 Resource Center.