Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
At a press conference on May 5, 2020, City and County of Denver, Colorado Mayor Michael Hancock announced that Denver’s “Stay at Home” Order will expire on May 8, 2020. Shortly after, Boulder County, Jefferson County, and the Tri-County Health Department (covering Adams, Arapahoe, and Douglas Counties) announced that they, too, would be allowing their stay-at-home orders to expire on May 8, 2020.
As a result, beginning on May 9, 2020, many businesses in Denver and the surrounding metropolitan area will be allowed to reopen consistent with the statewide “Safer at Home” Order.
In Denver,1 the businesses permitted to reopen specifically include:
- Non-critical offices;
- Non-critical retail;
- Post-secondary education campuses and buildings;
- Personal services (such as hair and nail salons, pet groomers, and personal trainers);
- Limited healthcare providers (such as dentists, eye doctors, and chiropractors); and
- Field services (such as in-person real estate showings).
Mayor Hancock’s decision to begin to reopen Denver is based in large part on Denver’s increased testing and contact tracing capabilities. When previously extending Denver’s stay-at-home order, Mayor Hancock had indicated that the ability to conduct 1,000 tests per day was critical to easing restrictions. As of May 5, 2020, Denver was testing 1,000 individuals per day for COVID-19, with the capability to administer up to 4,000 tests per day.2 Denver has also greatly increased its tracing processes, and on May 5 alone, trained 45 individuals to conduct contact tracing.
The following Denver businesses, however, are required to remain closed until further notice:
- Sit-down service in restaurants, bars, coffeehouses, and other places of public accommodation;
- Movie theaters;
- Live-performance theaters;
- Concert venues;
- Sports arenas;
- Gyms (with very limited exceptions);
- Shopping malls (except for stores that have public entrances/exits to the outside);
- Outdoor recreation facilities such as children’s playgrounds and tennis and basketball courts; and
- City recreation centers and libraries.3
Mayor Hancock declined to provide a timeline of when these businesses could reopen, but Executive Director of Denver Public Health Bob McDonald indicated that a 30-day sustained period of stabilization (meaning no increase in new cases and hospitalizations) may warrant loosening restrictions further. Conversely, Director McDonald indicated that a spike of cases and hospitalizations five days in a row would be an “alarm” signaling a need to return to more restrictive measures.
Businesses permitted to reopen must abide by Denver’s Face Covering Order effective May 6, and must maintain 6-foot social distancing. Such businesses also must generally comply with Governor Jared Polis’s “Safer at Home” Order.
More specifically, businesses reopening in Denver must:
- Clean and disinfect all high-touch areas, which the city indicated should occur multiple times a day, if not hourly, if possible;
- Eliminate, or regularly clean and disinfect, any items in common spaces;
- Post signage for employees and customers on safe hygiene;
- Ensure proper ventilation;
- Implement symptom monitoring protocols such as temperature checks;
- Require employees with symptoms to stay home;
- Accommodate employees who are vulnerable individuals;
- Provide flexible options for employees with child- or elder-care obligations;
- Provide appropriate PPE, like gloves, masks, or face coverings, if employees are unable to provide their own;
- Deputize a workplace coordinator to address COVID-19 issues; and
- Avoid meetings or groups of more than 10 employees, clients, or customers.
Businesses permitted to reopen after the expiration of Denver’s Stay At Home Order are also subject to specific operating restrictions. Non-critical offices and non-critical retail must operate with 50% fewer employees. Personal services and limited healthcare services must operate at either 50% occupancy or with 10 or fewer individuals in a single location, whichever is less, and by appointment only. In addition, regardless of the type of business, employers with 50 or more employees in a single location must:
- Create signage regarding health protocols, like those required above;
- Close common areas to prevent gatherings of employees;
- Conduct mandatory cleaning and disinfecting protocols; and
- Implement social distance protocols.
Finally, those businesses that are open to the public must also:
- Create special hours for vulnerable individuals when practical;
- Limit the number of on-site customers to continuously maintain six-foot distancing;
- Provide hand sanitizer and wipes at entrances to the greatest extent possible; and
- Use contactless payment solutions when possible.
Compliance with these new requirements will be enforced by the Denver Police Department (DPD) and the City Attorney’s Office. In fact, as of May 5, 2020, Mayor Hancock reported that DPD has made 11,337 contacts, and issued 4,070 warnings and 26 citations concerning social distancing to date. Although Denver has not yet announced specific penalties for non-compliance with this new order, violations of the Face Covering Order carry a fine of up to $999.00 per violation.4
Denver City Attorney Kristin Bronson suggested that employers may avoid receiving citations by attempting to comply with the requirements in good faith. For example, if an employer has complied with the signage requirement and has educated its employees regarding six-foot distancing and use of face coverings such that the majority of individuals inside its business are wearing face coverings, the employer will likely not receive a citation. However, if an employer fails to abide by the signage requirement and none of the individuals inside the business are wearing face coverings, the employer will likely receive a citation.
Therefore, to avoid citations, and, more importantly, to protect the health and welfare of the community, businesses planning to reopen after Denver’s Stay at Home order expires on May 9, 2020, should consider taking the following precautions:
- Post appropriate signage regarding health protocols and practicing good hygiene;
- Implement temperature and symptom screening;
- Implement frequent and thorough cleaning protocols;
- Develop face covering policies for employees, including information about who will provide and pay for face coverings;
- Develop a policy for refusing service to customers and members of the public who fail or refuse to wear face coverings;
- Designate a Workplace Coordinator, and train that individual to implement these policies;
- Train employees on the requirements of the “Safer at Home” Order, including the requirements related to face coverings; and
- Enforce appropriate policies against both employees and customers who do not comply.
For additional guidance regarding the expiration of Denver’s Stay At Home Order and its implications, contact us or your attorney and stay tuned for additional coverage.
1 Boulder County, Jefferson County, and the Tri-County Health Department have deferred to the statewide “Safer at Home” Order rather than delineating those specific businesses that may reopen.
2 Denver has also rolled out a “Wellness Winnie,” a mobile healthcare solution for underserved communities, which will be mobilized to do in-home testing for vulnerable individuals. Although tests currently require a physician’s order, the city is hoping to enter a standing order from the Denver Health and Hospital Authority for testing so that a referral is not needed.
3 Note that the Tri-County Health Department expanded this list to also specifically include cigar bars, bowling alleys, casinos, horsetrack and simulcast facilities, indoor gun ranges, and swimming pools.
4 Boulder County also maintains a face covering order, and violations carry penalties up to $5,000.00 or one-year imprisonment in county jail. Boulder County’s face covering order also more broadly applies to any person in Boulder County “whenever they are outside their residence and unable to maintain, or when not maintaining, social distance of at least six (6) feet from any non-household members.”