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 October 8, 2021, the Douglas County Health Department—which recently separated from the Tri-County Health Department that covered Douglas, Adams and Arapahoe Counties—issued a public health order relating to COVID-19 mitigation protocols (the “PHO”). While statements in the preamble to the PHO and public remarks by the Douglas County Board of Health implied that its scope may have been intended to be limited to the school setting, the text of the order goes further and applies to virtually all individuals within Douglas County. As such, its requirements apply to employers with employees in Douglas County, Colorado.
The PHO includes the following requirements:
- Face Coverings. Unless required by state or federal mandate, “individuals shall be exempt from any requirement to wear a Face Covering within Douglas County, if an individual aged 18 or older represents to any person or entity charged with enforcing and/or supervising such a requirement to wear a Face Covering . . . requesting to be exempted from the requirement to wear a Face Covering due to the negative impact on that individual’s physical and/or mental health.”
- Quarantine. “No Individual in Douglas County, regardless of age, shall be required to quarantine because of exposure to a known COVID-19 positive case unless the exposure is associated with a known Outbreak or otherwise required by superseding state or federal mandate.”
Douglas County’s PHO squarely conflicts with current Colorado, CDC, and OSHA guidance with regards to face coverings and quarantine periods.
On face coverings, the CDC and OSHA each advise that any individual older than age two should wear a mask in public indoor places if they are (1) not fully vaccinated; (2) fully vaccinated and in an area with substantial or high transmission;1 or (3) fully vaccinated and with weakened immune systems.2 Many employers have re-imposed indoor mask mandates based on this guidance, either for all employees or non-fully vaccinated employees. Douglas County’s PHO, however, would render such mandates invalid as to any employee who requests to be exempted based on a negative impact on their physical and/or mental health.3
The conflict between CDC and OSHA guidance and the PHO with regard to quarantine periods is even more stark. OSHA and CDC each advise that employers should “[i]nstruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-CoV-2, and all workers with COVID-19 symptoms to stay home from work to prevent or reduce the risk of transmission of the virus that causes COVID-19.” However, the PHO states that employees cannot be required to quarantine—even if they have had close contact with someone who tests positive for COVID-19 or symptoms of COVID-19—unless there has been a known Outbreak at the facility. An Outbreak is defined in the PHO to mean five or more cases of COVID within a 14-day period. Only employees who actually test positive for COVID-19 may be excluded from a worksite.
The PHO presents employers in Douglas County with a Catch-22. On the one hand, the PHO provides that it “may be enforced by any appropriate legal means,” and expressly references enforcement mechanisms such as fines, imprisonment, or injunctive relief. On the other hand, the weight of Colorado’s, the CDC’s, and OSHA’s guidance all urge more stringent rules with regard to face coverings and quarantine periods. Further, failure to comply with OSHA’s guidance on providing a safe workplace in light of the continuing COVID-19 pandemic could result in monetary fines or enforcement actions. In order to navigate these complicated issues, we encourage affected employers to contact legal counsel.
1 As of the posting of this article, Douglas County is in an area of high transmission of COVID-19. See https://covid.cdc.gov/covid-data-tracker/#county-view|Colorado|8035|Risk|community_transmission_level.
3 To be sure, OSHA recommends that employers may need to provide reasonable accommodations for any workers who are unable to wear or have difficulty wearing certain types of face coverings due to a disability or who need a religious accommodation under Title VII of the Civil Rights Act of 1964, although the PHO’s language appears to permit broader exemptions than what is contemplated under federal law.