Governor Polis Issues Statewide Stay-at-Home Order which Further Restricts In-Person Workforces

by Jennifer A. Tiedeken on March 27, 2020 under Firm News

As of March 26, 2020 at 6:00 am, all individuals within the state of Colorado have been ordered to stay home unless they are engaging in either a Necessary Activity or performing work for a Critical Business, as defined by the Colorado Department of Public Health and Environment (“CDPHE”). In addition, all businesses, except Critical Businesses, operating within the state of Colorado are ordered to close in-person work locations through the duration of the Governor Polis’s Stay-At-Home Executive Order (“SAH Order”), except in order to continue Minimum Business Operations (defined below). This blog provides an overview of the impact of the SAH Order to employers and employees and should not be viewed as legal advice.

How long is the SAH Order in place?

The SAH Order is effective from March 26, 2020 at 6:00 am through April 11, 2020, unless further extended.

Critical Business Exemption

The SAH Order applies the same standard for Critical Businesses as Governor Polis’s previous order, which mandated a reduction of in-person workforce by 50%. Critical Businesses exempt from the SAH are as follows:

  • Healthcare Operations, Including:
    • Hospitals, clinics, and walk-in health facilities; medical and dental care, including ambulatory providers; research and laboratory services; medical wholesale and distribution; home health care companies, workers and aides; pharmacies; pharmaceutical and biotechnology companies; behavioral health care providers; veterinary care and livestock services; nursing homes, residential health care, or congregate care facilities; and medical supplies and equipment manufacturers and providers, including durable medical equipment technicians and suppliers.
  • Critical Infrastructure, Including:
    • Utilities and electricity, including generation, transmission, distribution and fuel supply; road and railways; oil and gas extraction, production, refining, storage, transport and distribution; public water and wastewater; telecommunications and data centers; transportation and infrastructure necessary to support authorized businesses; hotels, and places of accommodation; businesses and organizations that provide food, shelter, social services, and other necessities of life for the economically disadvantaged, persons with access and functional needs, or otherwise needy individuals; food and plant cultivation, including farming crops, livestock, food processing and manufacturing, animal feed and feed products, rendering, commodity sales, and any other work critical to the operation of any component of the food supply chain; and any business that produces products critical or incidental to the construction or operation of the categories of products included in this subsection.
  • Critical Manufacturing, Including:
    • Food processing, manufacturing agents, including all foods and beverages; chemicals; computers and computer components; medical equipment, components used in any medical device, supplies or instruments; pharmaceuticals; sanitary products; telecommunications; microelectronics/semiconductor; agriculture/farms; household paper products; any business that produces products critical or incidental to the processing, functioning, development, manufacture, packaging, or delivery of any of the categories of products included in Critical Manufacturing; and any manufacturing necessary to support Critical Infrastructure.
  • Critical Retail, Including:
    • Grocery stores including all food and beverage stores; farm and produce stands; gas stations and convenience stores; restaurants and bars (for take-out/delivery only as authorized under Executive Order D 2020 011 and PHO 20-22, as amended); marijuana dispensaries (only for the sale of medical marijuana or curbside delivery pursuant to Executive Order D 2020 011); hardware, farm supply, and building material stores; and establishments engaged in the retail sale of food and any other household consumer products (such as cleaning and personal care products).
  • Critical Services, Including:
    • Trash, compost, and recycling collection, processing and disposal; mail and shipping services, and locations that offer P.O. boxes; self-serve laundromats and garment and linen cleaning services for critical businesses; building cleaning and maintenance; child care services (following the requirements outlined in Exemptions, below); auto supply and repair (including retail dealerships that include repair and maintenance, but not retail sales); warehouse/distribution and fulfillment, including freight distributors; funeral homes, crematoriums, and cemeteries; in-person pastoral services for individuals who are in crisis or in need of end of life services provided social distancing is observed to the greatest extent possible; storage for Critical Businesses; and animal shelters, animal rescues, zoological facilities, animal sanctuaries, and other related facilities.
  • News Media
    • Newspaper, television, radio, and other media services.
  • Financial Institutions
    • Banks, credit institutions, insurance, payroll, accounting, and services related to financial markets, and professional services, such as legal, title companies, or accounting services, real estate appraisals and transactions.
  • Providers of Basic Necessities to Economically Disadvantaged Populations, Including:
    • Homeless shelters and congregate care facilities, food banks, human services providers whose function includes the direct care of patients in State-licensed or funded voluntary programs; the care, protection, custody and oversight of individuals both in the community and in State-licensed residential facilities; and those operating community shelters and other critical human services agencies providing direct care or support.
  • Construction, Including:
    • Housing, and housing for low-income and vulnerable people; skilled trades such as electricians and plumbers; and other related firms and professionals who provide services necessary to maintain the safety, sanitation, and critical operation of residences, and other Critical Businesses or Critical Government Functions, and other essential services.
  • Defense
    • Defense, security, and intelligence-related operations supporting the State of Colorado, local government, the U.S. Government or a contractor for any of the foregoing; aerospace operations; and military operations and personnel.
  • Critical Services Necessary to Maintain the Safety, Sanitation and Critical Operations of Residences or Other Critical Businesses, Including:
    • Law enforcement; fire prevention and response; building code enforcement; security; emergency management and response; building cleaners or janitors; general maintenance whether employed by the entity directly or a vendor; automotive repair; disinfection; and snow removal.
  • Vendors that Provide Critical Services or Products, Including Logistics and Technology Support, Child Care and Services:
  • Logistics; technology support for online and telephone services; child care programs and services; government owned or leased buildings; and Critical Government Functions.
  • “Critical Government Functions” means providing, operating, and supporting Critical Services, including:
    • Public safety (police stations, fire and rescue stations, correctional institutions, emergency vehicle and equipment storage, and emergency operation centers); emergency response; judicial branch operations, including attorneys if necessary for ongoing trials and required court appearances, unless appearances can be done remotely; emergency medical (hospitals, ambulance service centers, urgent care centers having emergency treatment functions, and non-ambulatory surgical structures but excluding clinics, doctors offices, and non-urgent care medical structures that do not provide these functions); designated emergency shelters; communications (main hubs for telephone, broadcasting equipment for cable systems, satellite dish systems, cellular systems, television, radio, and other emergency warning systems, but excluding towers, poles, lines, cables, and conduits); public utility plant facilities for generation and distribution (hubs, treatment plants, substations and pumping stations for water, power and gas, but not including towers, poles, power lines, buried pipelines, transmission lines, distribution lines, and service lines); transportation lifelines (public transportation, transportation infrastructure); airports (municipal and larger), helicopter pads and structures serving emergency functions, and associated infrastructure (aviation control towers, air traffic control centers, and emergency equipment aircraft hangars), critical road construction and maintenance; hazardous material safety; services to at-risk populations and Vulnerable Individuals; and any government service required for the public health and safety, government functionality, or vital to restoring normal services.

Minimum Basic Operations

Employers may also remain open and have an employee/employees present at work in order to maintain minimum basic operational activities, defined as (1) maintaining the value of the business’s inventory, ensuring security, processing payroll and employee benefits, or for related functions; or (2) facilitating employees of the business being able to continue to work remotely from their residences. Any business supporting Minimum Basic Operations must comply at all times with Social Distancing Requirements set forth by the CDPHE.

Enforcement

The state’s legal authorities have been given broad discretion to enforce the SAH Order, including imposing fines up to $1000 and imprisonment of up to one year.

Other Considerations

There has been no additional guidance from the US Department of Labor or the Colorado government on how the SAH Order will interact with the Families First Coronavirus Response Act’s mandates (to read more about the FFCRA, click here). Employers should consult with an attorney to determine whether paid leave will apply to the SAH Order under their particular circumstances.

Conclusion

The SAH Order differs from the various municipal stay-at-home orders in place previously, and Employers should consult with a lawyer to understand their ability to continue operations during the duration of the SAH Order.

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

Valeri Pappas, Managing Partner
vpappas@davisandceriani.com

Jennifer Tiedeken, Special Counsel
jtiedeken@davisandceriani.com