Reopening Colorado – New COVID-19 Personal Protective Gear Rules

As Colorado businesses begin to reopen, what COVID-19 personal protective gear is required? Do businesses, workers, and customers need to don masks, face coverings, and gloves? The answers are complicated by the fact that the state, counties, and cities have promulgated a myriad of rules and orders as Colorado transitions out of “stay at home” and into “safer at home.”

Public Health Order 20-26

On April 22, 2020, the Colorado Department of Public Health and Environment (“CDPHE”) issued the statewide Public Health Order (“PHO”) 20-26. It requires all employees working in “critical businesses” or performing “critical government functions” in “close proximity” to other employees or the public to wear appropriate “face coverings.” A face covering must cover an employee’s nose and mouth. In addition, if the face covering moves while the employee is working, then it must be replaced with a face covering that does not need to be as frequently adjusted. This is to reduce the frequency of an employee touching their face. Routinely or consistently coming within six feet of other workers or the public is considered to be in “close proximity” to others.

These rules also apply to workers preparing or handling food for sale, as well as those working in skilled nursing facilities, assisted living residences, and intermediate care facilities.

PHO 20-26 advises employees of critical businesses or those performing critical government functions to wear gloves if they handle goods or come into contact with customers. Those working in food and childcare must use disposable gloves as is required by existing regulations. Employees are also required to wear gloves while cleaning equipment and surfaces.

Face coverings are not required for those for which a face covering would inhibit their health.

Those individuals who fail to comply with PHO 20-26 may be subject to penalties, including a fine of up to $1000.00 and imprisonment in the county jail for up to one year.

Safer-at-Home and Public Health Order 20-28

The statewide stay-at-home order expired on April 26, 2020. It was replaced by the statewide “safer-at-home” order. Among other things, the order directs employers to provide reasonable accommodation to employees living with children and those vulnerable to COVID-19 to the greatest extent possible by promoting remote work options and flexible schedules.

The safer-at-home order also directed CDPHE to publish PHO 20-28, which expands many of the protective gear rules in PHO 20-26. For instance, all business and government employers must provide appropriate protective gear, such as masks, face coverings, and gloves to employees. Additionally, employers must encourage customers to use face coverings. The order also includes rules for masks.

Many of the protective gear rules are further delineated according to industry:

Limited Healthcare Settings

Employees in limited healthcare settings, such as acupuncture, physical therapy, athletic training, optometry services, chiropractic care, and speech language pathology services, must wear medical-grade masks at all times. Customers and patients must wear, at a minimum, a cloth face covering. Employers in this category must have access to adequate Personal Protective Equipment (“PPE”) to sustain two weeks of work without needing to conserve PPE. Employers looking to reuse PPE must follow the Centers for Disease Control and Prevention’s guidance.

Personal Services

“Personal services” refers to services and products that are not necessary to maintain one’s health, safety, sanitation, or essential operations of a business or residence. This includes moving services, dog grooming, barbers, car and home repair services, stylists, massage therapists, and cosmetologists, to cite a few examples. Both employees and customers must wear, at a minimum, a cloth face covering or medical-grade mask at all times. Only services that allow a customer to keep their mask on are permitted. Disposable masks may be provided to customers but don’t expect to be offered a free mask, as some businesses are charging their customers $10 or more for a face mask prior to being permitted entry into the business.

Retail

Retailers must provide face coverings and gloves to all employees. Employees without face coverings may not perform work that requires interaction with the public or coworkers.

Office-Based Businesses

While office-based business may resume at 50% of their in-office occupancy, PHO 20-28 directs that office-based employers require employees to use gloves and masks when interacting with customers. Employers must also encourage customers to wear face coverings.

Non-Critical Manufacturing

Employers of manufacturing operations of no more than ten employees must require employees to wear face coverings or masks. Employers must also require essential visitors to wear masks or face coverings. In addition, employers are required to encourage employees to wear face coverings while using public transportation or carpooling to and from work.

The enforcement of PHO 20-28 is left to local authorities. Failure to comply could result in jail time, fines, and professional discipline.

The Local Response

In the wake of the state’s adoption of a safer-at-home order, several counties and cities adopted their own rules on personal protective gear. These rules are often more stringent than statewide rules, especially as they pertain to face coverings. Here are several examples:

City of Denver

The City of Denver announced its own face covering rules on May 1, 2020, effective May 6, 2020. Unlike the state rules, the order provides a detailed definition of a “face covering” and prohibits a certain type of mask that makes it easier to breathe. The order, with certain exceptions, also requires that all members of the public, including children ages 3 and up, wear a face covering when:

1. they are inside, or in line to enter, any retail or commercial business;
2. obtaining healthcare services;
3. waiting for or using public or private transportation, including buses, rail, taxis, ride-sharing vehicles, or private car services; or
4. driving with passengers in the vehicle.

The Denver order requires not just employees, but contractors, owners, and volunteers to wear face coverings. Businesses must take reasonable measures to remind customers and the public to wear face coverings. This could include posting signs. Furthermore, businesses are required to take all reasonable steps to prohibit members of the public not wearing face coverings from entering the business. Removal of a customer from a business for refusal to wear a face covering may be required.

Face coverings are not required for individuals in personal offices as long as members of the public do not regularly visit. However, individuals are required to use face coverings when six feet from a coworker, when visiting with a customer or client, and where coworkers and the public are regularly present. This includes hallways, conference rooms, and restrooms.

Failure to comply with this order may result in a civil penalty of up to $999.00. Unlike most other statewide and local public health orders, which generally expire within 30 days of issuance, Denver’s order will continue “until further notice.”

City of Fort Collins

Fort Collins Emergency Rule and Regulation No. 2020-15 defines a face covering as “a uniform piece of material that securely covers a person’s nose and mouth and remains affixed in a place without the use of one’s hands. Face coverings may include . . . bandanas, medical masks, cloth masks, and gaiters.”

Face coverings are required in any enclosed public area, local facilities, public transportation, or any other public indoor area where individuals cannot adequately maintain six feet or more of separation. Businesses in these situations are required to display signage that informs the public about the face covering requirements. Signs should be displayed in a prominent area on the property.

All employers must require and make reasonable efforts to provide face coverings to employees, volunteers, and workers if they work in an area where face coverings are required. However, several exceptions apply – most notably, children under the age of 10 in childcare facilities and customers of banks and pawnshops. Unlike the rules in Denver, those in an office setting are not required to wear a face covering where they do not have face-to-face interactions or share workspaces with others.

City of Aspen

Resolution No. 40 mandates that all individuals wear face coverings when entering and while inside a place of business or mode of transportation open to the public. In addition, face coverings must be worn in indoor areas where people are unable to maintain adequate social distancing. Aspen stipulates the same exception for office workers as Fort Collins but exempts children under the age of 2.

San Miguel County

San Miguel County was the first county in Colorado to enact rules requiring protective gear. All retail employers must provide face coverings and gloves to employees. Unlike Denver, San Miguel County only advises businesses to encourage customers to wear face coverings while on the premises. Those working in limited healthcare settings, such as physical therapy, must wear medical-grade masks and gloves. Administrative workers, however, must wear a face covering, but may remove the face covering when more than six feet from others. Businesses that provide services with close personal contacts, such as hairdressers and massage therapists, must wear face coverings and gloves. Careful handwashing may act as a sufficient substitute where gloves are not appropriate.

Larimer County

Larimer County’s Public Health Order, issued on May 3, 2020, requires all employees who come into contact with the public to wear a face covering. Members of the public entering or in line to enter any business must use a face covering. Those with medical conditions in which wearing a mask would interfere with their health are exempt. Children under the age of 2 are also exempt.

Boulder County

Boulder County’s May 2, 2020 Notice takes a different stance. The notice requires that each person in Boulder County wear a face covering whenever they are outside their residence and unable to maintain social distancing of at least six feet. The county takes an expansive view of a “residence,” as here, the term includes both real property where an individual resides and motor vehicles used for personal use by an individual or members of the same household.

It is recommended that businesses operating in Colorado understand both existing state and local rules and regulations involving personal protective gear. Rules may change drastically between different cities and counties and are likely to change rapidly as the situation unfolds. Attentiveness will be key to maintaining compliance for your business as Colorado continues to reopen its economy.

If you have any questions, please contact Clark Reeder or Laura J. Riese.