Updated: May 8, 2020

As the nuances of Colorado Governor Jared Polis’s “Safer at Home” Order continue to reveal themselves to Colorado employers resuming operations, two more state agencies have weighed in: the Colorado Department of Labor and Employment (CDLE) and the Colorado Civil Rights Division (CCRD).

In easily overlooked portions of the “Safer at Home” Order, Governor Polis specifically noted that employers must “provide reasonable accommodation and are prohibited from discriminating against employees who are showing symptoms of COVID-19 or who have been in contact with a known positive case of COVID-19.” Governor Polis further ordered “employers to accommodate workers with childcare responsibilities and workers who live in the same household as a Vulnerable Person to the greatest extent possible by promoting telecommuting or other remote work options, flexible schedules, or other means.”

Governor Polis directed the CCRD to provide guidance designed to prevent discrimination in the workplace related to COVID-19. On May 4, 2020, the CCRD did just that following the CDLE’s earlier issuance of an Emergency Rule and Paid Leave and Unemployment FAQs on April 27, 2020. 

One of the primary thrusts of both the CCRD’s Guidance and the CDLE’s FAQs is protection of “vulnerable individuals.” Both indicate that “vulnerable individuals” cannot be required to go to a place of work.  The CDLE further states that employers must accommodate “vulnerable individuals” with telework whenever possible, and cannot require them to return to work if their work requires close proximity to others.  From the “Safer at Home” Order itself, that requirement applies to: (1) those over age 65; (2) those with chronic lung disease or “moderate to severe asthma”; (3) those with “serious heart conditions”; (4) those who are immunocompromised; (5) pregnant women; and (6) “[i]ndividuals determined to be high risk by a licensed healthcare provider.”

Employers looking to CDC guidance for additional clarity may find these categories immeasurably broad. Those who are immunocompromised include individuals undergoing cancer treatment or bone marrow or organ transplantation; those who smoke; those with immune deficiencies or poorly controlled HIV or AIDS; and those who have taken corticosteroids for a prolonged period or are taking other immune-weakening medications. The CDC also indicates that those who are likely to be determined high-risk by a healthcare provider include those with obesity (body mass index of 40 or higher), those with diabetes, those with kidney disease undergoing dialysis, and those with liver disease. As a result, individuals falling within the category of “vulnerable individuals” could range from employees with arthritis taking corticosteroids to employees who have a history of smoking, creating a remarkably broad group of potentially impacted employees.

The CCRD’s Guidance further clarifies that those who are pregnant or have disabilities have the right to request “reasonable accommodations” from employers subject to the Colorado Anti-Discrimination Act (CADA) or the federal Americans with Disabilities Act (ADA).  The CCRD’s Guidance also states that “employees with disabilities that put them at high-risk for complications related to COVID-19 may request telework or paid/sick/unpaid leave as a reasonable accommodation to reduce their chances of infection during a pandemic.”   

As a result, employers would be prudent to follow the same process they would for employees presenting with health conditions that may qualify as a disability.  Employers should, therefore, request reasonable medical documentation, accommodate the employee when reasonable without an undue hardship, and otherwise comply with Colorado Revised Statutes sections 24-34-402, 24-3-402.3,¹ and 3 C.C.R. § 708-1:60.1 to 60.6.  But the CCRD’s Guidance further clarifies what information may be sought from those who request accommodations.  While employers may ask employees “if they are experiencing influenza-like symptoms, such as fever or chills, and a cough or sore throat,” they may not “ask employees who do not have known or apparent influenza symptoms whether they have a medical condition that the Centers for Disease Control and Prevention says could make them vulnerable to influenza complications.”  Both the CCRD and CDLE are clear that employers may not discriminate “against a vulnerable individual based on disability, age, or pregnancy,” nor against those who are “showing symptoms of COVID-19 or who have been in contact with a known positive case of COVID-19.”

To provide much-appreciated clarification, the CCRD also provides examples of “illegal discrimination,” including “[c]o-workers, supervisors, or customers harassing an employee of Asian descent by making derogatory remarks or comments about his/her heritage” and “[l]aying off an employee that is perceived to be disabled because they are showing symptoms of COVID-19 or who have been in contact with a known positive case of COVID-19.”

The CDLE’s Emergency Rule and FAQs also address those who may feel unsafe at work, even if they may not be “vulnerable individuals” or otherwise protected by CADA or the ADA.  CDLE Emergency Rule 4.3.2.1 addresses voluntary terminations resulting from “unsatisfactory or hazardous working conditions.”  It is designed to protect the unemployment eligibility of those who leave employment or refuse a suitable offer of work based on both: (1) the specific vulnerability of the individual and (2) the objective risks for such an individual in the workplace.

The CDLE’s FAQs also go much further in addressing refusals to return to work by “vulnerable individuals,” those with childcare responsibilities, and those who may be eligible for paid leave under either the federal Families First Coronavirus Response Act (FFCRA) or the Colorado Health Emergency Leave with Pay (HELP) Rules.

While they do not go so far as to protect anyone who expresses such a concern, they do protect vulnerable individuals and those who reside with vulnerable individuals who refuse to return to “unsatisfactory or hazardous working conditions,” at least for purposes of unemployment eligibility. The FAQs also specifically direct those who believe that there are “[a]ny other possible violations of social distancing, or other health and safety orders” to report their concerns to the “federal Occupational Safety and Health Administration or County health officials.”

Consistent with the “Safer at Home” Order, the FAQs also state that employers must accommodate employees experiencing a lack of childcare due to school closures, including providing limited remote work options and flexible scheduling. The FAQs specifically direct employees to the leave provided by the FFCRA, and warn that requiring such an employee to return to work could be unlawful.

The same is true of the Colorado HELP Rules. The FAQs reiterate that paid leave is available under the HELP Rules for those “with flu-like or respiratory illness symptoms who are either (1) being tested for COVID-19 or (2) under instructions from a health care provider or authorized government official to quarantine or isolate due to a risk of having COVID-19.” They further make clear that the expanded categories under the HELP Rules provide coverage “for all workers” in the categories listed—not just for those employers with fewer than 500 employees like the federal CARES Act. The FAQs also make explicit that “[i]f an employer requires work from an employee entitled to paid leave (due to illness or a quarantine/isolation order) under the Colorado HELP Rules, that would be unlawful under those rules, and should be reported to the contact information at the bottom of these FAQs.”

Thus, like many recent COVID-19-related mandates, the CDLE’s Emergency Rule and FAQs and CCRD’s Guidance provide both guidance and ambiguity for employers managing employees reluctant to return to work. To help navigate this transition from shelter-in-place to safely-at-work, employers should consider taking the following actions:

• Review anti-discrimination, benefits, leave of absence, and accommodation policies and handbooks to make necessary changes to ensure they are compliant with the CCRD’s and CDLE’s guidance;
• Ensure that policies exist with respect to requesting and taking leave under the federal FFCRA and the Colorado HELP rules;
• Review recall notices and offer letters to those returning to work to provide appropriate notices to individuals who may be showing symptoms of COVID-19, who may be “vulnerable individuals,” who may have COVID-19-induced childcare challenges, and who may qualify for leave under either the federal FFCRA or the Colorado HELP Rules;
• Train supervisors, managers, and human resources professionals on the process to accommodate those who may express concerns about returning to work, as well as the qualifications for leave under the federal FFCRA and the Colorado HELP rules that may impact those returning to work; and
• Be cognizant of federal, state, and local anti-retaliation provisions that may apply to employees who have voiced concerns about returning to work during the COVID-19 pandemic.