A welter of laws and regulations covers employers and employees as workplaces begin to reopen after COVID-19 closures and restrictions.
With new state laws in play and state regulations that have changed seemingly every couple of weeks, it’s no wonder businesses are confused.
The Business Journal asked local experts to help untangle the legal aspects of returning to work and maintaining a safe environment for employees and customers.
Broadly speaking, employers can require employees to return to the workplace, said George Russo, director of the Colorado Springs regional office of Employers Council and an employment attorney.
There are exceptions, however, governed by federal law, including the Americans with Disabilities Act and the Occupational Safety and Health Act requirement to provide a safe work environment.
“If someone has an ADA condition that they need accommodated, the employer would need to go through that process and see if they could accommodate that employee,” Russo said. “And that accommodation may be that they don’t return to the workplace.”
Under OSHA, employers have an obligation to provide a safe work environment.
“There may be an opportunity for an employee to say, ‘Hey, I’m not coming back; it’s not safe,’” he said. “Then an employer would have some issues to deal with in that regard.”
In an at-will employment state like Colorado, once employees do return to work, the employer has the ability to direct their work, Russo said, but under the safe workplace requirement, employers need to mitigate the risk from COVID-19.
“So wearing a mask might be something that is required under OSHA. Washing your hands, sanitizers, cleaning the office, getting air ventilation — employers need to look at their specific situation and figure out if those are required and ask if that is what a safe work environment looks like,” he said.
“So if the employer is not providing a safe work environment, employees would have some recourse,” he said. “They would be able to file a complaint through OSHA.”
Colorado Gov. Jared Polis recently extended the state’s mask mandate, and OSHA’s mask requirements are stricter than the state’s, Russo said.
“Let’s say you had an office where everyone was vaccinated,” Russo said. “Technically, under Colorado law, you don’t have to wear masks, but maybe you still could get in trouble with OSHA. As a general rule, when you have two laws, you want to take the one that is more restrictive or more beneficial to employees.”
Employers can mandate mask wearing, however.
“A uniform is one way to think about it — an employer can tell you what to wear,” Russo said. “And they can tell you safety rules — that goes back to their obligation to keep the employee safe. … They are allowed to tell customers to wear a mask as well.”
Employers also need to be aware of the provisions of the federal Families First Coronavirus Response Act and Colorado’s Healthy Families and Workplaces Act.
The Families First Act went into effect in April 2020 and required employers with fewer than 500 employees to provide paid COVID-related medical and emergency family leave for employees who were unable to work.
The act’s original provisions expired Dec. 20, but the American Rescue Plan of 2021 allowed employers to voluntarily provide additional leave through Sept. 30, 2021.
The Colorado Healthy Families and Workplaces Act went into effect Jan. 1. Employers with 16 or more employees were required to provide at least 48 hours of paid sick leave or extended family and medical leave per year.
Besides personal health considerations, paid time off can be used if an employee must care for a family member or needs to provide child care if schools or businesses are closed due to a public health emergency.
“Employers should explore these sick-leave options with employees if it is related to COVID,” Russo said. “If an employee had requested protected leave and the employer didn’t provide it, the employer can get in trouble for that. The penalties depend on the law. Under the Healthy Families Act, oftentimes the remedy is that they’re going to make the employer pay money for the lost wages. Same deal with the Families First Act.”
Under both acts, the appropriate state or federal agency would investigate a complaint and impose a monetary penalty if there was a proven violation.
“They can even say you need to rehire them if you fired them,” Russo said.
As of April 16, Polis suspended the COVID-19 dial that has mandated levels of restrictions for the past 14 months, based on COVID-19 disease metrics.
There are still guidelines that all counties are required to follow, but the governor’s order allowed individual counties to determine whether further restrictions would be required.
El Paso County has not imposed further restrictions, County Attorney Diana May said, but is following the state guidelines.
Additional state public health orders maintained the requirement for face coverings in specific indoor settings in counties with a one-week disease incidence rate in excess of 35 cases per 100,000 population, May said. As of May 10, El Paso County’s incidence was 231.4 per 100,000.
According to the governor’s orders, the mask requirement applies to public indoor spaces where 10 or more unvaccinated individuals or people of unknown vaccination status are present.
Specifically, face coverings remain required in schools, child care facilities and indoor camps; congregate care facilities; medical settings including emergency medical and urgent care centers; and settings where personal services are delivered.
Businesses may ask individuals to remove their masks for identification purposes but otherwise may require wearing a mask.
But masks are not required to be worn by people who are seated at a restaurant or by individuals receiving a personal service where temporary removal of the mask is necessary to perform the service.
Other exceptions to the mask order include public safety personnel such as law enforcement officers, firefighters and emergency medical technicians; and individuals who are giving a speech for broadcast or an audience.
“We tell businesses all the time that they can make a business decision to have something more restrictive,” May said.
Indoor events where 100-500 people will be attending are still required to maintain 6-foot distancing between nonvaccinated people and comply with the state mask order. If an event is held for more than 500 people, sponsors must first obtain a variance from Colorado Department of Public Health and Environment and the local public health agency.
There are no restrictions for unseated outdoor events, but for outdoor events that are seated and ticketed, sponsors must consult with the state and local public health departments to determine capacity limits and other strategies prior to the event.
The provisions of the 5-star program, which allowed approved businesses to ease restrictions, remain in effect, May said, along with variances that have already been issued.
For example, she said, “the Vibes stadium that used to be the Sky Sox stadium has a variance and a 5-star approval, so they’ve already received approval to do events there.”
The governor also put in place exemptions to the mask order that are based on percentages of vaccinated people in attendance, May said.
“If you have 80 percent of people that have provided proof of vaccination, you don’t have to have that distancing between folks, and you don’t have to have the masks,” May said. “For restaurants, it’s 85 percent of their employees.”
That restriction “does put the onus on the business” to determine whether people have been vaccinated or not, she said. “Businesses probably need to consult with their counsel or their business advisor on how they want to go about doing that.”
Susan Wheelan, director of El Paso County Public Health, said her agency is getting a lot of questions about the 80 percent vaccination provision and recently participated in a call with state legal representatives.
“They said they were going to come out with some frequently asked questions about how to do that,” Wheelan said.
Public Health will continue to provide technical assistance and guidance on best practices, disease prevention and management of mask order procedures, she said.
The new state regulations may be enforced “by all appropriate legal means,” May said. “Failure to comply could result in penalties including jail time and fines,” and violators “may be subject to discipline on a professional license based on applicable practice acts.”
Those enforcement powers are vested in the state, May said, but the county could look at bringing a civil action or work with law enforcement to bring a criminal charge against someone who violates the public health orders.
“Thankfully, we’ve never had to threaten criminal prosecution … during the past 15 months of the pandemic,” May said. No civil actions have been considered, either, she said.
El Paso County Public Health focuses on education and outreach, Wheelan said.
“The vast majority want to do the right thing and follow the law and orders,” she said. “It would be a last resort to do the enforcement.”
Wheelan said she works with numerous business, health care and community leaders to address the challenges and dynamics of the pandemic.
Although the state has given local authorities the power to enact more stringent requirements, “I won’t make a decision in the silo unless something was extremely critical,” she said. “I don’t plan to do a local public health order at this time.”
The state’s public health order included a “clawback” provision, May said, that depends on a county’s hospitalization capacity.
“If their whole capacity of resources starts nearing an 85 percent capacity, the state could come in and mandate restrictions,” she said. “They’re going to consult with local public health before they do it.”
Wheelan said the best way to prevent that from happening is for more people to get vaccinated against COVID-19.
“I’m calling on the public to take advantage of the free, easy access to the vaccine,” Wheelan said. “That’s really what’s going to help provide health protection for our community. And that is, in turn, helpful for a thriving community economically.”