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.
On May 4, 2020, Colorado issued Amended Public Health Order 20-28, which makes a number of modifications to the state’s Safer at Home Order. These amendments attempt to clarify some ambiguities in the original Safer at Home Order, including who is responsible for conducting temperature and symptom checks, but leave a number of questions unanswered. Because the situation in Colorado is so fluid—we anticipate additional changes in the coming weeks—employers are encouraged to consult counsel for the latest developments.
Employees May Self-Check for Temperatures and Symptoms
The original Safer at Home Order required all businesses permitted to open to conduct temperature and symptom checks of their employees each day. While this requirement would assist in contact tracing and ensuring that sick individuals do not report to work, it nonetheless raised a host of compliance questions. For example, small employers—such as those with only one or two people working per shift—worried about how to conduct these checks if no manager was on duty, while larger employers expressed concern that checking each of potentially hundreds of employees at the door each day would be extremely time-consuming and pose logistical challenges. Employers of all sizes voiced concern over the training necessary to conduct daily temperature and symptom screenings and the risk associated with creating a record of their employees’ private health information.
Fortunately, the temperature and symptom check requirement has now been modified. While all employers open to the public must still implement symptom monitoring protocols and are encouraged to conduct daily temperature checks and monitor symptoms at the worksite, employers now also have the option to have employees conduct a self-assessment at home for symptoms and temperature prior to coming to work where worksite checks are “not practicable.”
Larger employers, defined to mean those with over 50 employees, likewise may create a business policy that requires employees to self-screen at home each work day and to report the results to the employer prior to entering the worksite.
This change should substantially lessen the burden on employers. However, some challenges remain. For example, if an employee does not own a thermometer, employers may have to provide them or revert back to checking the employee’s temperature at the door. No employee should be permitted to enter the worksite absent assurances that they are symptom and temperature free.
The Colorado Department of Health and Environment (CDPHE) has also updated its sample screening form to indicate that an employee with any one of the following symptoms must be sent home immediately: fever, cough, or shortness of breath. Noticeably absent from this list is “difficulty breathing,” a symptom identified by the CDC as an indicator that someone “may have COVID-19.” The sample form also asks employers to screen for “other symptoms,” without indicating what those include. Moreover, it is not clear when employees exhibiting “other symptoms” must be sent home. The form instructs employers to exclude employees until they are fever free (without medication) for 72 hours and 10 days have passed since their first symptom. The form contains a notice to employers to retain the screening form in a secure place for three months and to provide the forms upon request from public health officials. While this retention requirement is not expressly contained in the Safer at Home Order, it appears that the CDPHE believes that employers must retain screening forms for three months.
Further, the requirement for employers to either conduct, or to require their employees to conduct, temperature and symptom checks before beginning work, leads to the question of whether such time is compensable “time worked.” Colorado regulations specifically define security or safety screenings and the time spent waiting for them as “time worked that must be compensated.”
Additionally, the remaining obligations placed on employers that are permitted to open to the public under the Safer at Home Order are still in place. These include the requirement to deputize a workplace coordinator to address COVID-19 issues, to wear face coverings in some circumstances (and many Colorado counties have broadened this requirement within their jurisdictions), and to accommodate Vulnerable Individuals. Further, many counties have enacted similar, but not identical, safer at work policies that govern within their respective jurisdictions.
Non-Critical Manufacturing Businesses are Permitted to Open
The Amended Public Health Order also adds a new category of business that may reopen in accordance with the requirements of the original: non-critical manufacturing. These businesses are limited to a production environment of no more than 10 employees and must comply with the requirements listed on new Appendix H, including the following:
Create and implement policies and procedures to reduce disease transmission:
- Modify the flow of foot traffic to minimize contacts, such as arranging one-way flow of work and people;
- Implement six-foot distancing and impermeable barriers between employees wherever possible;
- Designate workers to monitor and facilitate distancing on processing floor lines;
- Require handwashing upon arrival and before departure and set handwashing time frames throughout the day;
- Limit the sharing of tools, equipment, and resources as much as possible and if not feasible, implement cleaning and disinfection protocols as often as possible for any such shared tools, equipment, and resources;
- Conduct cleaning in accordance with OSHA guidance and the CDPHE;
- Disinfect work stations between shifts and/or at the end of the workday;
- Provide contactless options, such as entry to the worksite, payments, etc., whenever applicable and possible;
- Use paperless, electronic options whenever possible to reduce the use of shared paperwork;
- Require employees to use masks or face coverings, except where doing so would inhibit that individual’s health;
- Group employees into teams or shifts that remain together;
- Support transportation arrangements that discourage carpooling;
- Encourage the wearing of masks or other face coverings while carpooling or taking other forms of public transportation;
- Implement procedures to limit person-to-person interaction in inbound/outbound shipping areas; and
- Draft a Preparedness and Response document in accordance with OSHA guidance.
These employers must prohibit entry to the worksite of all non-essential external visitors and:
- Conduct symptom checks for any essential visitors who will interact with employees; and
- Require essential visitors to wear masks or face coverings.
Covered employers should ensure that the COVID-19 Coordinator both understands and is ensuring compliance with these requirements.
While the requirements of Appendix H apply only to non-critical manufacturing, they set forth recommended practices for all industries. Indeed, there is no explanation as to why only non-critical manufacturing must support alternative transportation arrangements, reduce the use of paperwork, or modify the flow of traffic and work.
For additional guidance regarding the Safer at Home Order and its implications, contact us or your attorney and stay tuned for additional coverage.