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April 2020

Rocky Mountain Region COVID-19 Update (CO, ID, MT, NE, NM, UT, WY)

April 10, 2020

The Rocky Mountain Region COVID-19 Employment Update provides information about COVID-19 orders in Colorado, Idaho, Montana, Nebraska, New Mexico, Utah and Wyoming.

General Advisements

- In many situations, federal, State, and local cities or counties may have orders or regulations covering the same legal areas. Generally, the federal, State and local orders all apply in such a situation, so follow the most restrictive law.  This is especially important for the Stay at Home or Shelter-in-Place Orders.  If your city or county has issued a Stay at Home Order, but your State has not, you must comply with the city or county order. There may be some instances in which federal law could preempt State law, and we recommend you seek specific counsel in those situations.

- Companies should consider the potential for claims against Directors & Officers, Errors & Omissions, Management Liability, or any form of Professional Liability Insurance policies, including Healthcare Professional Liability policies.  Claims could be made against managers, directors, officers, or professionals for a failure to make decisions that would have prevented the spread of disease.  Potentially more costly could be claims by investors, who have seen the value of their holdings dwindle, seeking to assert claims against officers alleging that a lack of response (or inadequate response) led to a reduction in share price.  Policyholders will argue that pollution exclusions have limited effect against such claims.

- Even if no shelter-in-place or stay-at-home orders have been issued for your location, companies should be wary of requiring employees to work in dangerous work environments that could be created if guidelines are not followed or in place. While there is no specific OSHA standard governing COVID-19, the General Duty Clause, requiring employers to provide “a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm,” still applies.  We recommend all companies follow the OSHA Guidance on Preparing Workplaces for COVID-19 and the CDC Environmental Cleaning and Disinfection Recommendations.

- On the federal level, the Families First Corona Virus Response Act requires that companies with fewer than 500 employees give full-time employees 80 hours of paid sick leave and also provide part-time employees with some paid leave.  It generally applies to anyone who has coronavirus, is in quarantine or caring for someone in quarantine, or is caring for a child under 18 whose school is closed as a result of the outbreak.  There are caps on the payouts: $511 per day for employees with the virus or in quarantines and $200 per day for employees caring for someone in quarantine or a child.  Employers are eligible to be reimbursed for with a tax credit to leave paid out to employees under the law.

- On March 27, 2020, President Trump signed the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act – the Federal government’s third aid package intended to keep businesses and individuals afloat during this unprecedented freeze on American life – into law.  For more details see the complete advisory here.

State-by-State Analysis

Note: The exemptions to the limits on gatherings and essential work places vary on both a state and local level.  To determine if your business is considered an essential/critical business and the requirements such essential businesses must comply with (e.g., social distancing, shift staggering), please continue to read on below.

Colorado

Governor Jared Polis declared a state of emergency in Colorado on March 10, 2020 and issued Executive Order D 2020 003 on March 11, 2020 reflecting this emergency declaration.

Paid Leave

State Suspension of Other Regulatory Activities

State Limits on Gatherings and Work Places

City and County Limits on Gatherings and Work Places

WARN Act

Health and Emergency Leave with Pay (“HELP”) rules

(7 CCR 1103-10)

Employees in certain industries (leisure and hospitality, education, food services, child care, home health, nursing homes, and community living facilities) covered by the HELP rules are required to be given 4 days paid sick leave for testing of coronavirus. This is not on top of or in addition to any sick leave provided by an employer. If an employee already has 4 paid sick days provided by an employer, he or she will not get 4 extra.

 

Taxes (D 2020-010)

- Suspends the tax deadline and directs the Colorado Department of Revenue to extend the income tax deadline and estimated tax payments to July 15, 2020.

- applies to all individuals and businesses.

 

Restaurants and Marijuana (D 2020-011)

- Suspends certain regulations for businesses in the alcohol and marijuana industries to allow businesses to adapt to the restrictions of social distancing, including allowing businesses to deliver alcohol and suspending physical exams for medical marijuana cards.

 

Bars, Restaurants, Casinos, Gymnasiums, and Movie Theaters

(PHO 2020-022)

- Closes bars and restaurants for on-premises dining; takeout and delivery services allowed

- Closes gymnasiums, casinos, cigar bars, movie theaters, and concert halls

 

Foreclosure and Unemployment

(D 2020-12 and D 2020-31)

 - Seeks to prevent evictions, foreclosures, and public utility disconnections.

- Allocates $1 million to improve and expedite the process of unemployment applications

- Aims to provide benefits to worthy applicants within 10 days of filing

 

Suspensions of Property Tax Requirements (D 2020-22)

- Suspends enforcement of certain statutes pertaining to taxable property requirements for taxpayers

Colorado Stay at Home

See detailed GRSM Article and Executive Order D 2020-024 (effective through April 26, 2020)

 

Implementing Social Distancing Measures (Public Health Order 20-23)

 

Closure of Downhill Ski Areas (D 2020-004, D 2020-006, and D 2020-026)

- Ski area operations to be closed until April 30, 2020

 

Multi-Industry Construction Guidance

- Includes requirements to maintain social distancing on construction sites and limits crew size

 

- City and County of Denver

(extended through April 30, 2020)

 

- San Miguel County

 

- Pitkin County

 

--Larimer County

 

/50729690v.1No mini-WARN Act

 


Idaho

Governor Little declared state of emergency on March 13, 2020.

Paid Leave

State Suspension of Other Regulatory Activities

State Limits on Gatherings and Work Places

City and County Limits on Gatherings and Work Places

WARN Act

No additional guidance

Unemployment Changes

• Idaho Department of Labor has clarified if coronavirus causes an employer to temporarily or permanently shut down operations, unemployment benefits are available to individuals who are unemployed through no fault of their own.  If an employer must shut down operations and no work is available, individuals may be eligible for unemployment benefits.

 

• If an employ receives unemployment benefits as a result of a coronavirus-related business shutdown, this could impact the employer’s unemployment taxes as there are currently no provisions to waive charge requirements as a result of the coronavirus at this time.

 

 

Order to Self-Isolate

(Idaho Dept. of Health and Welfare, Order of the Director – March 25, 2020)

Essential facilities will remain open:

•grocery stores

•healthcare facilities

• gas stations

• pharmacies

• essential state and local government functions

• laundromats/laundry services

• financial institutions

• residential and home-based care

• veterinary services

• hardware stores

• limited child care for essential workers

• infrastructure

• other businesses essential to the safety and wellbeing of the residents (defined further in Order)

•Restaurants open, but only for drive-thru, carry-out, or delivery.

Boise

[Order 20-02]

• All bars closed

• All restaurants closed, except for drive-thru, take out, or delivery 

[Amended Order 20-03]

• Requires all venues and businesses to comply with social distancing requirements

Idaho has no mini-WARN Act


Montana

On March 12, 2020, Montana Governor Steve Bullock declared an emergency in the State of Montana with regards to the COVID-19 pandemic in Executive Order 2-2020 and extended the state of emergency on March 14, 2020 in Executive Order 3-2020

Paid Leave

State Suspension of Other Regulatory Activities

State Limits on Gatherings and Work Places

City and County Limits on Gatherings and Work Places

WARN Act

 

Adoption of Temporary Emergency Rules related to Unemployment Benefits

(1) A claimant directed by the employer to leave work or not report for work due to the employer's response to the COVID-19 pandemic, including COVID-19 induced reduction in demand or availability of materials, is deemed to have been temporarily laid off by the employer.

(2) A claimant subject to a COVID-19 quarantine is deemed to be laid off by the employer during the period of the quarantine.

(3) A claimant who is a caregiver of a family member who is the subject of a COVID-19 quarantine is deemed, in order to further the public health, safety, and welfare, to also be subject to a COVID-19 quarantine.

(4) When a claimant has experienced a temporary layoff due to the COVID19 pandemic, pursuant to (1), (2), or (3), the claimant is deemed to be able, available, and seeking suitable work when:

(a) the employer intends to recall the claimant to work at the end of the temporary layoff; and

(b) the claimant intends to return to work when recalled by the employer and takes reasonable measures to maintain contact with the employer.

(5) A claimant laid off as the result of being subject to a COVID-19 quarantine is ineligible for benefits if the claimant refuses work that can be performed while complying with the terms of the quarantine.

 

 

 

Food and Beverage

• Closure of dine-in food service and other areas that pose enhanced health risks until at least April 24th. 

• Courts and other public entities also are limiting their services.

Stay at Home and Essential Functions

Executive Order (extended through April 24, 2020)

• Residents directed to stay at home or at their place of

residence to the greatest extent possible.

• Non-essential businesses required to cease all activities.

• Essential business to implement social distancing.

• Public and private gathering restricted.

• Travel must be limited to essential travel and travel for essential activity.

• Essential Activates include: health and safety, necessary supplies and services, outdoor activity, certain types of work, to take care of others

•  Can leave for health care and public health operations and human services operations

•  Provide Services for essential infrastructure, government functions

•   Essential Businesses: stores that sell groceries and medicine, food and beverage production and agriculture, organizations that provide charitable and social services, media, gas stations and transportation, financial and real estate services and institutions, hardware stores, critical trades, mail/logistics, education institutions, laundry, restaurants (off-premises consumption only), supplies to work from home and other business essentials, home based care, residential facilities and shelters, professional services, manufacturing, critical labor union functions, hotels/motels, and funeral services

• Implements social distancing requirements for essential businesses

 

Montana has no mini-WARN Act


Nebraska

On March 13, 2020, Governor Pete Ricketts issued an executive order (20-01) declaring a state of emergency and emergency relief for state and federal length and weight hauling requirements through May 1, 2020.

Paid Leave

State Suspension of Other Regulatory Activities

State Limits on Gatherings and Work Places

City and County Limits on Gatherings and Work Places

WARN Act

 

Unemployment

(Executive order 20-04)

• waives employer-related contribution requirements to unemployment benefits for claims related to COVID-19 through May 2, 2020.

 

Income Tax

• The deadline to file state income taxes has been extended from April 15, 2020 to July 15, 2020

 

Trucking

(Executive Order 20-01)

• Haulers of food, supplies, and equipment are allowed to operate additional hours.

• No motor carrier shall require or allow an ill or fatigued driver to operate a motor vehicle.

• A driver who notifies a motor carrier that he or she needs immediate rest shall be given a least ten (10) consecutive hour's off-duty before the driver is required to return to service.

• Drivers must carry a copy of the Order with them as evidence of their direct support to the state

• Carries not directly supporting pandemic response efforts in the state, or that have an Out-Of-Service Order in effect, may not take advantage of the relief from regulation that such a declaration provides under 49 CFR 390.23.

Ban of Gatherings

(Executive Order 20-06)

• Bars gatherings of more than 10 people in Douglas, Sarpie, Cass, and Washington Counties of Nebraska through April 30, 2020.

• Does not apply to office buildings, traditional office settings, or manufacturing facilities.

 

 

Douglas County Ban of Gatherings and Closing of Bars and Restaurants

[March 20, 2020 Douglas County Department of Health Order]

- Bars gatherings of more than 10 people for from March 18, 2020 to April 30, 2020

- See above link for exceptions.

Nebraska does not have a mini-WARN Act.

 


New Mexico

New Mexico Governor Michelle Lujan Grisham declared a State of Emergency on March 11, 2020.

Paid Leave

State Suspension of Other Regulatory Activities

State Limits on Gatherings and Work Places

City and County Limits on Gatherings and Work Places

WARN Act

No additional guidance

Unemployment Benefits

Employees may qualify for unemployment benefits if they:

• are laid off due to the impact of COVID-19

• are required to self-quarantine as a precaution against the spread of COVID-19 or have an immediate family member who is quarantined due to COVID-19; or

• have their hours reduced as a result of COVID-19. 

• Voluntary resignation from employment due to lack of child care is a disqualifying event for receipt of unemployment benefits, even where the lack of childcare is due to the impact of COVID-19.

• Voluntary separation from employment for fear of contracting COVID-19 is a disqualifying event.

• Benefits are available to employees regardless of full-time or part-time status if  hours are reduced due to lack of business related to COVID-19 as long as the employee’s earnings are under the weekly benefit amount. 

• Waived the work search requirement for four weeks

• No waiver of one-week waiting period before benefits are provided.

Renewal Extension of March 11, 2020 Order

(April 2, 2020)

•Renews the statewide public health emergency proclaimed on March 11, 2020 and extends the public health emergency through April 30,2020

 

Healthcare Staffing

(April 2, 2020 Order)

• Permits the New Mexico Department of Health (NMDOH) to allow Canadian nursing professionals who are licensed and in good standing to work in any New Mexico healthcare facility during the Pendency of the COVID-19 pandemic.  

Aging and Long-Term Services Department

(April 2, 2020 Order)

• Authorizes emergency funds for the Aging and Long-term Services Department to assist in relief efforts during the state wide public health emergency due to COVID-19.

Additional Emergency Funds for Homeland Security and Emergency Management

(April 2, 2020 Order)

• Authorizes additional emergency funds for the Department of Homeland Security and Emergency Management to assist in and coordinate relief efforts during the statewide public health emergency due to COVID-19.

Transportation and Trucking

(March 31, 2020 Order)

• Directs the New Mexico Department of Transportation (NMDOT) to create a streamlined process for Emergency Expedited Special Permits (EESP) that would allow overweight vehicles and loads that can be easily dismantled or divided to travel in New Mexico between March 31, 2020 and July 1, 2020.

• Relief supplies include food, beveragers, medicine, medical supplies, clothing, building materials for temporary structures or shelters, and any other materials NMDOT determines are primarily for disaster relief.

 

 

Temporary Waiver of Motor Vehicle Fees and Penalties

(March 30, 2020 Order)

• Directs Secretary of the Taxation and Revenue Department (TRD) to instruct the Motor Vehicle Division (MVD) to waive collection of all late fees and other penalities triggered by failure of an applicant to timely submit an application or other required documentation for registration, license, permit, or other privilege under the Motor Vehicle Code.  

Notarial Acts

(March 30, 2020 Order)

• Directs the Notary Compliance and Enforcement Unit (NCEU) to not recommend any form of discipline for any notary who performs a notarial act through audio-video technology provided that certain conditions are met.

Restriction on Airport Travel

(March 27, 2020 Executive Order)

• Requires people traveling to New Mexico through an airport to self-isolate or self-quarantine for the shorter of either a) 14 days after entry or b) duration of stay in NM

Use of Additional Emergency Funds

(March 27, 2020 Order)

•Authorizes additional emergency funds for the Department of Health to purchase personal protective equipment, testing supplies, and other necessary materials to address the COVID-19 Epidemic.

Temporary Restriction on Non-essential Health Care Services

(March 24, 2020 Public Health Order)

• Prohibits non-essential health care services, procedures, and surgeries

• Non-essential means procedures which can be delayed for 3 months without undue risk

Temporary Regulation of the Sale and Distribution of PPE

(March 24, 2020 Public Health Order)

• Restricts health care providers and medical suppliers with an inventory of PPE from reducing its inventory via selling, distributing, etc. without prior approval from NWHD

Stay-at-Home

(March 23, 2020 Order)

• Directs all New Mexico residents to stay at home and undertake only outings necessary for health, safety, and welfare

• All businesses to reduce in-person workforce 100%

• Essential businesses may remain open but must minimize operations and staff to greatest extent possible (see above link for list of Essential Businesses)

• Hotels, motels, RV parks, and other places of lodging must operate at no more than 50% capacity (health care workers for individuals in said lodging are not counted for capacity) 

Food Service and Mass Gatherings

(March 19, 2020 Order)

• Closing restaurants, bars, breweries, eateries, and other food service establishments to dine-in customers.

• All mass gatherings of more than 10 people are prohibited until further notice.

 

 

No mini-WARN Act


Utah

On March 6, 2020, Governor Gary R. Herbert issued an executive order declaring a state of emergency due to the infectious disease COVID-19 novel coronavirus. By joint resolution (H.J.R. 24), the Utah legislature extended the state of emergency to June 30, 2020.

Paid Leave

State Suspension of Other Regulatory Activities

State Limits on Gatherings and Work Places

City and County Limits on Gatherings and Work Places

WARN Act

No additional guidance

 

Business Restrictions and Guidance

(March 21 Order)

Food Service

• Closing dine-in services for “all food service, restaurants, self-serve buffets, salad bars, unpackaged self-serve food services, bars, taverns, nightclubs, private liquor clubs, and saloons

• Takeout service is only allowed if purchased remotely by electronic means (either internet, app, or telephone)

• Takeout orders within the establishment are prohibited. 

• Drive-thru service permitted

• Online payment strongly encouraged

• Employees who handle cash or credit cards should use cleansing measures between transactions. These employees cannot participate in food preparation, handling and delivery

Hotels

• Not allowed to serve complimentary meals unless the meals are pre-packaged and to be taken outside of common areas

Convenience stores

• Not prohibited from serving hot food items or a self-serve drink

3rd Party Delivery Services

• Permitted

• Employees must use cleansing measures with each transaction

• May not deliver if presenting any symptoms consistent with COVID-19

Long Term Care

• To follow guidance issued by Centers for Medicare and Medicaid Services, Center for Clinical Standards and Quality.

 

Gatherings

(April 1, 2020 PHO)

• Extends bans of gatherings of more than 10 people, effective through April 15, 2020

• Only listed exception to this rule is for grocery stores.

Other Recommendations for businesses

(April 1, 2020 PHO)

• Implement social distancing in communal areas of the establishment

• Employees should be screened, on a daily basis and at the beginning of each shift, for symptoms consistent with COVID-19. Employees who present symptoms should not be permitted to work at the physical premises of the business

• Members, guests, patrons, or customers who present symptoms of illness consistent with COVID-19 should be excluded from the physical premises of the business

Order to Postpone All Elective Surgeries/Procedures

• Effective March 25, 2020 at 12:01 a.m. until April 25, 2020 at  11:59 p.m.

Salt Lake City

(Public Health Order 2020-03)

• In place until April 13, 2020

• Stay home except to engage in essential activities or to work in essential business, infrastructure, and/or governmental services

• All businesses must practice social distancing

• Prohibits all public and private gatherings for any number of people 

• Closes places of public amusement and activity, salons, and spas

• Restricts food services to take-out and drive-through

• Discourages all non-essential travel

• Permitted activity: health and safety, supplies and services, outdoor activity, certain types of work, provide care for others, essential travel

• Provides addendums with more specific “essentials”

Utah has no mini-WARN Act.

 


Wyoming

Wyoming Governor Mark Gordon declared a state of emergency on March 13, 2020. State COVID-19 Website.

Paid Leave

State Suspension of Other Regulatory Activities

State Limits on Gatherings and Work Places

City and County Limits on Gatherings and Work Places

WARN Act

 

 

Essential Businesses

• Extended to April 30, 2020.

• Closure of all restaurants, coffeehouses, bars, theaters, gymnasiums, child care facilities, K-12 schools, colleges, universities, and trade schools.

• Includes childcare facilities – except for children of essential personnel.

• Restaurants may offer take out, drive-through, and delivery. 

• Alcohol may be included with pickup orders. 

• Up to 5 members of the public may be allowed at a one time for pick up and must stay 6 feet apart.

Closure of nail salons, hair salons, barber shops, massage therapy services, tattoo/body art/piercing shops, cosmetology services, esthetic services, and electrology services.

• Exceptions: crisis shelters, airport concessionaires, and necessary COVID-19 emergency facilities.

 

Gatherings

• Gatherings of 10 or more people prohibited, except: hotels/motels, livestock auctions, workers being transported to job location, government business (including jails and law enforcement), food pantries and shelter facilities, grocery stores, pharmacies, drug stores, truck stops gas stations, auto-repair facilities, healthcare facilities, alcohol and drug treatment facilities, long term care and assisted living facilities, and retail establishments where more than 10 people can remain 6 feet apart.

 

 

Wyoming has no layoff notice requirements of its own.  The state does assist in enforcing federal requirements.  http://www.wyomingworkforce.org

 
Visit our COVID-19 Hub for ongoing updates.

COVID-19 Task Force

Lillian L. Alves
Philip T. Barrett
Danielle A. Estenssoro
Nathan A. Huey
Christopher Ryan Jones
Peggy E. Kozal
Thomas B. Quinn
Anna M. Reinert
Christine A. Stickley



COVID-19 Task Force
Employment Law