By Aaron Chaet

As states around the country, including Colorado, relax their sheltering in place orders, non-critical businesses are beginning to reopen. To ensure that COVID-19 does not further spread, the Equal Employment Opportunity Commission (“EEOC”) and the Colorado Department of Health & Environment have issued new guidance and regulations so that they can safely operate.

On April 23, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its guidance on employers administering COVID-19 testing before allowing employees to return to the workplace.FN1 The EEOC provides that under the Americans with Disabilities Act (“ADA”) employers are permitted to test their employees before they enter the workplace.FN2 Employers, however, should ensure that the testing methods used are reliable and accurate.

On April 26, 2020, the Colorado Department of Health & Environment issued Public Health Order 20-28, more commonly known as Safer at Home, which established detailed requirements for Colorado businesses that are currently operating or will soon be reopening.FN3 The basic requirement that applies to all business is adhering to varying degrees of social distancing requirements.

For instance, starting on May 1, 2020, non-critical retail may reopen at fifty percent (50%) capacity provided that they implement certain measures to reduce the transmission of COVID-19. Notably, these measures also apply to critical retail businesses as well. The following is a non-exhaustive list:

1. maintain 6-foot distancing between patrons and employees and install decals and demarcation for waiting area in lines that meet social distancing criteria;

2. effectively symptom monitor employees by conducting daily temperature checks, monitoring symptoms, logging all results, and referring symptomatic employees to the CDPHE Symptom TrackerFN4;

3. provide face coverings, and gloves as necessary and appropriate, to employees;

4. ensure ability to adequately clean and disinfect both back-room and retail spaces;

5. provide dedicated, in-store hours for vulnerable or at-risk individuals;

6. create signage encouraging vulnerable and at-risk individuals to refrain from shopping outside of dedicated hours set aside for those who are more vulnerable or at-risk;

7. create signage to encourage the use of masks and gloves by customers while on the premises; and

8. provide hand sanitizer and wipes at entrances and other high-traffic locations to the greatest extent possible.FN5

Beginning on May 4, 2020, Safer at Home also provides that non-critical office-based businesses may resume at fifty percent (50%) capacity. These businesses are must adopt policies that:

1. ensure a minimum of 6 feet of space between all desks and workspaces;

2. modify the flow of people traffic to minimize contacts, such as identifying doors for entry or exit only;

3. conduct standard office cleaning with increased frequency and supplement with sanitization of high touch areas, in accord with CDPHE guidelinesFN6;

4. provide employees with cleaning and disinfecting products and guidance on daily workspace cleaning routines;

5. post signage for employees and customers on good hygiene and new office practices;

6. maintain in-office occupancy at no more than 50% of total by maximizing use of telecommuting and developing in-office rotation schedules;

7. minimize the number of in-person meetings and maintain 6-foot distancing in those meetings;

8. require gloves and masks for any customer interactions; and

9. allow telecommuting to the greatest extent possible.FN7

Safe at Home also established regulations for businesses providing field services, personal services, and certain limited healthcare services.FN8

Takeaway

As Colorado businesses are slowly reopening, they must be mindful of the Colorado Department of Health’s mandate that they implement measures, such as ensuring proper social distancing, monitoring and documenting employees’ symptoms, and reducing capacities. Please contact the attorneys at Campbell Litigation for guidance regarding the requirements to continue to operate or reopen businesses in Colorado.

Footnotes:

FN1 - https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm

FN2 - Id.

FN3 - https://www.rbc.us/DocumentCenter/View/2214/20-28-Safer-at-Home-1

FN4 – https://covid19.colorado.gov/covid19-symptoms

FN5 - https://www.rbc.us/DocumentCenter/View/2214/20-28-Safer-at-Home-1 at Appendix A

FN6 – https://drive.google.com/file/d/1XQnjAL2nzdPnb7Dabz7-fX8Pw7XlyUe8/view

FN7 - https://www.rbc.us/DocumentCenter/View/2214/20-28-Safer-at-Home-1 at Appendix C

FN8 – Id. at Appendices B, D, and E