Executive Orders from Governor Polis and Mayor Hancock Require Employees to Stay Home

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Statewide Mandate

On March 22, 2020, Governor Polis signed Executive Statewide Order D 2020 013 (the “Statewide Order”) which requires all Colorado employers, with exceptions for certain industries discussed below, to reduce their in-person workforces by 50% unless the employer can certify that employees are no closer than six feet from one another during any part of their work hours. This blog summarizes the main points of the Statewide Order and should not be viewed as legal advice.

When does the Statewide Order go into effect?

The Statewide Order is effective from March 24, 2020 through April 10, 2020, unless further extended.

Requirements

The requirement of the Statewide Order is to reduce in-person workforce by 50% at any specific time where people will be working in-person (as opposed to tele-working). The Statewide Order “strongly encourages” that employers keep 100% of employees on the payroll through the duration of the Statewide Order. Thus, if tele-working is not possible for an employer who is not otherwise exempt under the Statewide Order, the employer may stagger work schedules in Statewide Order to comply with the Statewide Order. The employer must ensure only 50% of its in-person workforce is together at the same time. The only exception for a covered employer (one who is not part of one of the exempt critical industries discussed below) is if the employer can certify that none of its employees will be closer than 6 feet from another employee during the entire duration of each employee’s work hours. Pursuant to the Statewide Order, the Colorado Department of Health and Environment shall be in charge of certification compliance and shall impose penalties on any employer who provides false information in a certification.

Exempt Critical Industries

The following industries are altogether exempt from the Statewide Order:

  • Healthcare Operations
  • Critical Infrastructure
  • Critical Manufacturing
  • Critical Retail
  • Critical Services
  • News Media
  • Financial Institutions
  • Providers of Basic Necessities to Economically Disadvantaged Populations
  • Construction
  • Defense
  • Critical Services Necessary to Maintain the Safety, Sanitation and Critical Operations of Residences or Other Critical Businesses
  • Vendors that Provide Critical Services or Products, Including Logistics and Technology Support, Child Care and Services
  • Critical Government Functions

Enforcement

Failure to comply with the Statewide Order may result in penalties, including a fine of up to $1000 and imprisonment for up to one year.

Denver-Specific Mandate

On March 23, 2020, Mayor Hancock announced his city-wide stay-at-home order (the “Denver Order”), which applies to all employers in Denver and all employees who live or work in the City and County of Denver, except for Essential Businesses. The Denver Order is applicable to any individual within the City and County of Denver and all businesses within the City and County of Denver and the mandate extends well beyond work-related activity. This blog focuses only on those requirements as they apply to Denver employers. Essential Businesses under Mayor Hancock’s Denver Order are defined separately from Critical Industries in the Statewide Order.

When does the Denver Order go into effect?

The Denver Order is in effect from March 24, 2020 at 5 pm through 5 pm on April 10, 2020, unless further extended.

Requirements

The Denver Order requires all employers located within the City and County of Denver to cease all activities at facilities located in Denver, except for Minimum Basic Operations, unless the business is an “Essential Business” pursuant to the Denver Order. Employers should consult the Denver Order or legal counsel to determine if they qualify under one of the numerous exemptions.
Minimum Basic Operations are defined as: the minimum necessary activities to maintain the value of the business’s inventory, ensure security, process payroll and employee benefits, or for related functions; the minimum necessary activities to facilitate employees of the business being able to continue to work remotely from their residences; and the minimum necessary activities to facilitate employees of the business being able to continue filling online product orders and to process customer orders remotely.

Enforcement

Employers that violate the Denver Order are subject to civil, criminal, and administrative actions, fees, fines, sentences, penalties, judgments, and remedies, which may be imposed simultaneously or in succession, in addition to a fine of up to $999 per violation.

Conclusion

Covered Employers should take steps to immediately implement measures to comply with the Statewide Orders prior to March 24, 2020. Employers should be cognizant of other legal requirements, including laws governing layoffs, FMLA, and discrimination in implementing the Statewide Order. Employers should contact a lawyer with any questions.

Davis & Ceriani’s COVID-19 Employment Law Team:

Valeri Pappas, Managing Partner
vpappas@davisandceriani.com

Jennifer Tiedeken, Special Counsel
jtiedeken@davisandceriani.com