Colorado’s stay-at-home order expired on Sunday, April 26. It has been replaced by a new order, issued April 26, reflecting the state’s transition into the next phase of its COVID-19 response, termed “Safer at Home.” Colorado Governor Jared Polis first announced the coming change on April 20, explaining that this new phase will allow some businesses to reopen (subject to certain limitations), while stressing that most existing health and safety restrictions on individuals and businesses will remain in place. And, indeed, the safer-at-home order continues the stay-at-home order’s existing social distancing requirements for all Coloradans; restrictions applicable to the safe operation of critical businesses; prohibitions on large social gatherings; and limitations applicable to vulnerable individuals.This alert summarizes the key elements of the safer-at-home order and provides recommendations for steps businesses can take to ensure compliance.

Phased Reopening

The safer-at-home order “implements a number of measures that will allow many Coloradans to return to work,” consistent with maintaining “a sustainable level of social distancing.” In practice, that means a phased re-opening of businesses in certain industries:

• As of today, April 27, “non-critical retail” businesses may provide delivery, walk-up, drive-up, drive-through, window, and curbside delivery services.
• In addition, a separate order allows voluntary or elective surgeries to resume on April 27 under certain conditions. 
• Beginning May 1, non-critical retail may open at 50% capacity and allow customers on their premises, provided they strictly comply with social-distancing requirements (similar to how critical retail businesses have been operating under the stay-at-home order). Providers of personal services may also reopen, subject to similar restrictions.
• On May 4, non-critical commercial businesses may allow up to 50% of their workforce to resume in-person work. Businesses with more than 50 employees must implement symptom-screening and temperature-check stations, as well as other measures to ensure proper social distancing. 

Even as in-person work resumes, the order continues to encourage telecommuting as much as possible. Employers should note that they may not compel vulnerable individuals to come to work—even if their business is deemed critical.¹ The order also directs employers, “to the greatest extent possible,” to provide accommodations—such as telecommuting and flexible schedules—for “workers with childcare responsibilities and workers who live in the same household as a Vulnerable Person.”

General Best Practices

The Colorado Department of Public Health and Environment (CDPHE) published a new order on April 27 to facilitate implementation of the governor’s safer-at-home order. Among other things, CDPHE’s order contains a list of best practices for workplaces and employees. Any business reopening under the safer-at-home order must comply with these measures. Even those businesses not specifically identified as eligible to reopen in the coming weeks should begin to consider whether and how they might implement these measures. Depending on the circumstances, failure to comply with these practices could expose companies to legal liability.

Workplaces must:

• Deputize workplace coordinator(s) charged with addressing COVID-19 issues;
• Maintain six-foot separation when possible, and discourage shared spaces;
• Sanitize all high-touch areas;
• Post signage for employees and customers on good hygiene;
• Ensure proper ventilation;
• Avoid gatherings of more than ten people (meetings, waiting rooms, etc.);
• Implement symptom monitoring protocols where possible (including temperature monitoring);
• Eliminate or regularly sanitize any items in common spaces (i.e., condiments, coffee makers, vending machines);

Employers and employees must:

• Require employees to stay home when showing any symptoms or signs of sickness, and connect employees to company or state benefits providers;
• Provide flexible or remote scheduling for employees who need to stay home;
• Encourage and enable remote work whenever possible;
• Encourage breaks to wash hands or use hand sanitizer;
• Phase shifts and breaks to reduce density;
• Provide appropriate protective gear like masks, gloves, and face coverings;

Retailers must:

• Create special hours for vulnerable populations whenever possible;
• Encourage six-foot distancing inside of businesses for all patrons;
• Encourage the use of protective gear like gloves, masks, and face coverings;
• Provide hand sanitizer at entrance;
• Use contactless payment solutions, no touch trash cans, etc. whenever possible.

Industry-Specific Guidance

In addition to these generally applicable best practices, CDPHE is developing industry-specific guidance to implement the safer-at-home order. The order published today contains more-detailed guidance for certain types of businesses as they begin to reopen, including “non-critical retail,” personal services, non-essential medical services, and “field services” such as real estate.

Individuals and employers in these sectors should carefully review the industry-specific guidance contained in the appendices to CDPHE’s order to ensure they understand, and are prepared to comply with, the order’s requirements concerning social distancing, cleaning, personal protective equipment, symptom checking, and other protective measures and limitations on business operations. Companies in other sectors should continue to monitor the latest guidance from CDPHE. 

Local Government Approaches Vary

Like the stay-at-home order it replaces, Colorado’s safer-at-home order allows for local flexibility in certain circumstances. The order expressly permits local governments to impose more-protective requirements, including extending existing stay-at-home orders or mandating mask wearing or other protective measures. Denver and other counties in the metro area, for example, have already announced an extension of their existing, more-restrictive stay-at-home orders through May 8.²

 At the same time, the state order creates a process for local governments to apply to CDPHE for a variance that allows them to impose less-restrictive measures—which would otherwise be preempted by the state order. To ease restrictions beyond (or more quickly than) the state as a whole, local governments will need to demonstrate “low case counts of COVID-19” or fourteen consecutive days of declining cases. In addition, local governments must submit a written COVID-19 suppression plan approved by the local public health authority, all hospitals within the jurisdiction, and a majority of the county commissioners (or, in the case of Denver, the mayor).

Any county that adopts less-restrictive standards without CDPHE’s approval will be ineligible for COVID-19 emergency preparedness grant funding.

A handful of local governments have already formally requested variances from the state. Eagle County, for example, was granted a variance on April 23, allowing certain parks and businesses within the county to reopen ahead of the rest of the state, provided social distancing guidelines are followed.³

Given the likelihood that rules will differ across jurisdictions, businesses in Colorado should ensure that they identify all regulations and guidelines applicable to their operations. This may require not only familiarity with the state order but also regular monitoring of actions taken at the city and county levels where the business operates. There are at least three possibilities:

• If a local authority has not enacted its own regulations—or if it has expressly adopted the safer-at-home order—the state-wide rules apply.
• If a local government has implemented rules more restrictive than those in the state order, the local regulations apply.
• Finally, if a local government has adopted rules less restrictive than the state’s, those rules will apply only if the local government has received a waiver from the state. If a local government eases restrictions prior to obtaining a waiver—for example, as Weld County is attempting to do—it would be prudent for businesses to continue to comply with the more-stringent state requirements to avoid liability. (Under Colorado law, the state order likely preempts any less-restrictive local order, rendering the conflicting provisions of the local order void. Compliance with the local order would therefore not serve as a defense to penalties imposed for a violation of the stricter state order.)

Enforcement

As with the stay-at-home order, state and local law enforcement have authority to enforce the safer-at-home order. County and District Attorneys are authorized to bring any criminal or civil action requested by local public health directors for violations of the order. The CDPHE, represented by the Colorado Attorney General, can also enforce the state order. Willful violation of the order is a misdemeanor, punishable by up to one year in jail and/or a fine of not more than $1,000. This provision applies to both individuals and corporations.

Violation of the order may also result in civil liability. The Colorado Attorney General’s Office has indicated that individuals who violate a public health order may be responsible for “some costs of the health agencies in abating the cause of the sickness,” and that companies found to have violated an order may have state licenses (such as restaurant and liquor licenses) revoked.

It is not yet clear how aggressively the government will enforce the new order. Enforcement of the state’s stay-at-home order focused on communication and education, and there were relatively few official citations issued. For example, law enforcement officers enforcing the stay-at-home order in Denver had contacts with nearly 7,000 businesses and residents, issued 2,113 warnings, but handed out fewer than 20 official citations.

Whether the safer-at-home order is more or less restrictive than a local order, and how best to approach the orders applicable to one’s organization, will often involve a case-specific inquiry and judgment as to the health and safety needs of one’s business, customers, and community. The authors of this alert, or one’s regular WilmerHale contacts, are available to advise your company through these challenges.