By Sam Light, CIRSA General Counsel (updated – 6-12-20)

On April 17, Governor Polis issued an Executive Order requiring workers in Critical Government Functions “to wear a non-medical mask covering their nose and mouth while at work and while serving the public.”  In follow-up to this Executive Order and related amendments, the Colorado Department of Health and Environment (CDPHE) currently has in place an Amended Public Health Order (PHO) regarding face coverings.  This article answers questions and provides some resources regarding this face covering requirement, which took effect April 23 and is currently set to expire July 4, 2020.

Which municipal employees must wear a face covering?  The Executive Order applies to workers in Critical Government Functions¹ who “interact in close proximity with other employees or with the public.”  The PHO further explains:  “Workers who may routinely or consistently come within 6 feet of other workers or the public are considered to be in close proximity to others.”  These workers “must wear a medical or non-medical face covering that covers the worker’s nose and mouth, unless doing so would inhibit the individual’s health.”²

Must my city/town purchase and supply the face coverings required by the PHO?  The PHO states a worker “may use a face covering provided by their employer, if available, or may choose to use their own face covering.”  But, the PHO also states “[e]mployers who manage Critical Government Functions should make every effort to provide their workforce with medical or non-medical face coverings.”  Moreover, the most current Safer at Home and in the Vast, Great Outdoors Order states broadly that employers shall takes measures to provide employees with appropriate protective gear like gloves, masks, and face coverings.  Given this, your entity should consider its options and take steps to obtain and provide face coverings, as it would with other employer-supplied personal equipment.  We have all heard stories of scarcity and high costs for masks, but ordering non-medical face coverings may be an easier option to pursue.  Another option may be to retain a qualified vendor to make face coverings.

How long do the requirements last?  The PHO took effect at 6:00 a.m. on Thursday April 23, 2020.  The requirements were originally set to expire after 30 days.  However, by Executive Orders D 2020 067 and D 2020 092, issued respectively on May 16 and June 4, the face covering requirements have been extended and are now set to expire July 4, 2020 unless extended further by Executive Order.

Has the state issued any guidelines related to these requirements?  The Executive Order and PHO include some guidance.  The PHO states “unless working in a healthcare setting, employers should provide non-medical face coverings for their employees.”  But, the Executive Order also recognizes that certain work environments require more protective measures, and “[n]othing in this Executive Order should be construed to prevent workers in…Critical Government Functions from wearing a surgical-grade mask or other, more protective face covering to cover the nose and mouth if that type of mask or more protective face covering is required because of the nature of the work performed.”

The PHO states “[c]loth face coverings should fit snugly but comfortably against the side of the face, include multiple layers of fabric, allow for breathing without restriction, and be able to be laundered and machine dried without damage or change to shape.”  More generally, both the CDPHE and CDC have issues guidance for making and using cloth face coverings, available here and here.³

What are some “dos and don’ts” for proper use?  With face coverings now required for certain workers, your entity may also want to consider providing employee with some basic tips on the proper use.  You’ll want to follow the health agencies’ latest guidance on these issues, and some CDPHE and CDC suggestions on usage can be found at the two links immediately above.  Beyond health agency suggestions, you will want to consider basic safety tips to minimize the risks of work-related injuries.  These include, for example, reminding workers to wear their face covering in a manner that does not obstruct their vision or create any risk that it may become entangled with running machinery or equipment.

In addition to employees, are individuals receiving critical governmental services required to wear face coverings?  The answer to this question will vary depending on requirements currently in place within your local jurisdiction.  At the statewide level, the Safer at Home and in the Vast, Great Outdoors Executive Order (D 2020 091) and current related Public Health Order (Sixth Amended PHO 20-28) essentially advise and urge individuals “to wear non-medical cloth face coverings that cover the nose and mouth whenever in public.”  The Executive Order also recognizes that municipalities are not prevented from adopting more protective standards, and some cities and towns have adopted ordinances or orders requiring face coverings.

In Executive Order D 2020 092, Governor Polis added language to his prior orders on face coverings stating employers and operators of public accommodations shall have the discretion to deny admittance or service and require the removal of any individual who fails to wear a medical or non-medical face covering.  However, our view at CIRSA is that municipalities in particular will want to exercise extreme caution in exercising this discretion, given the potential liability risks.

For example, as the Executive Order notes, any exercise of this discretion must be consistent with the ADA, Title VII of the Civil Rights Act, the Colorado Anti-Discrimination Act, and other federal and state law.  And, under these laws, there are circumstances in which a municipality must make an exception, allowance, or accommodation.  Moreover, municipal enforcement itself can raise other liability risks, such as claimed civil rights violations.  Thus, if your jurisdiction has a face covering requirement, it is best from a risk perspective to encourage voluntary compliance and avoid enforcement actions whenever possible.  And before taking any enforcement action, you’ll want to consult with your municipal attorney on legal issues that may preclude enforcement as well as related risks and alternatives that may better keep you out of harm’s way.

Conclusion.  As the Governor’s Executive Orders and the related PHOs note, there are numerous critical government functions that must continue during Colorado’s response to the COVID-19 pandemic.  And, as public servants, many of your employees serve in public-facing roles where risks of transmission increase.  Under the above-noted Executive Orders and PHO, certain of your employees are currently required to wear a face covering while working, as least until July 4.  Members will want to give continuing attention to the requirements, and we hope the above information is helpful in furthering the shared goal of keeping your workers and communities safe.

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¹ The current definition of “Critical Government Functions” (as of June 12) can be found here.

² The PHO also includes a provision stating that “all employees performing Critical Government Functions who come into contact with customers or goods should wear gloves, if gloves are provided by their employer.”

³ Note, these links provide only general information about cloth face coverings.  Further, this article is for general information only, and any discussion of particular uses, effectiveness, or training for any types of non-medical or medical masks or other respiratory protection equipment or measures is beyond the scope of this article.  Members are encouraged to consult with health agencies and their own experts on specific questions.