Colorado Ties Mask Mandate to Vaccination Status, but Employers Should Proceed with Caution

Updated May 11, 2021: Since publication of this ASAP, many metro Denver counties have loosened their county-level face covering orders to follow the statewide order, including Denver, Broomfield, and Boulder.

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Since July 2020, Colorado has required that all employees wear a face covering while working indoors.1 However, Colorado Governor Jared Polis recently announced significant changes to the statewide mask order. Still, there are several considerations employers must make before permitting employees to go maskless while at work.

The first change is that Colorado will only require face coverings if a county has a one-week incidence rate of COVID-19 in excess of 35 per 100,000. Up-to-date information on each Colorado county’s incidence rate is published on Colorado’s “Covid-19 Dial Dashboard,” which is available here. As of the date of publication, however, only a handful of counties—Cheyenne, Kiowa, Pitkin, Hinsdale, and Costilla, which collectively have about .5% of the state’s population—have incidence rates under the 35 cases per 100,000 residents threshold. Thus, while this modification may have greater impact if and when COVID-19 case counts fall in Colorado, this change presently does not affect the rules for most of the state’s population.

The second announced modification is to limit the statewide face covering mandate to apply only where 10 or more unvaccinated individuals or individuals of unknown vaccination status are present. At the statewide level, in-person gatherings of less than 10 people are no longer subject to a face covering mandate.2 Further, under the revised public health order, individuals can remove their masks even in gatherings of 10 or more people if 80% of the individuals have shown proof of vaccination for COVID-19. In short, Colorado permits employers to do away with a face covering mandate for employees working indoors if 80% of the employees have shown proof of vaccine.

However, employers should take into account multiple additional considerations before dropping the face covering requirement for on-site work. The first is that while the face covering mandate has been loosened at the statewide level, Colorado permits counties to set stricter rules, and many counties have done just that. For example, many metro-Denver counties, including Denver, Boulder, Broomfield, Adams, Arapahoe and Douglas Counties, continue to mandate face coverings for all employees while indoors, regardless of employees’ vaccination status. These county-level requirements may loosen in the future, but for now they remain in effect, and supersede the state-level face covering rules.

Also, despite the loosened face covering rules at the state level, the federal Centers for Disease Control continues to advise that “[f]or now, fully vaccinated people should continue to: Take precautions in indoor public settings like wearing a well-fitted mask.”3 Likewise, OSHA’s current guidance is that “[i]t is important to wear a face covering and remain physically distant from co-workers and customers even if you have been vaccinated because it is not known at this time how vaccination affects transmissibility.”4 In other words, Colorado’s statewide mask rules are contrary to the federal guidance. The safer approach is to continue to follow the federal guidelines on how to provide a safe workplace for employees, particularly as we anticipate additional guidance from OSHA in this area.

The third issue is that it is statistically quite unlikely that a Colorado employer’s workforce has reached the 80% vaccination threshold. As of May 4, only about 33% of Coloradans are fully vaccinated, a far cry from 80%.5

The 80% vaccination threshold also raises the issue of how employers can verify the vaccination status of employees. The EEOC has advised that merely asking employees for proof that they have been vaccinated is not a disability-related inquiry under the ADA, and thus asking employees to provide proof of vaccination is generally permissible. However, if employers request proof, they should also make clear that employees should only provide proof of the COVID vaccine, and no other health information.

In sum, while Colorado’s face covering rules are loosening, employers must undertake a careful analysis of all applicable federal, state, and local public health rules and guidance before permitting employees to work onsite without a mask.

See Footnotes

1 E.g.Executive Order D 2020 110 (requiring employees to “[w]ear medical or non-medical cloth face coverings that cover the nose and mouth while working, except where doing so would inhibit that individual’s health”).

4 See Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, available here.

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.