PLEASE NOTE: The U.S. Department of Labor released new guidance related to the FFCRA on March 26. We are in the process of updating the below content. Please return for the latest information.
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by Adams, Arapahoe, Boulder, Denver (City and County), Jefferson, Larimer, Pitkin, and San Miguel Counties are not superseded and govern their respective jurisdictions in the more restrictive aspects.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 The orders remain in effect until April 11, 2020 at 11:59 p.m., unless extended, superseded, rescinded, or amended in writing.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 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:
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.
The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
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.
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.
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:
- Full Time – 80 hours
- 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.
