Colorado: Return-to-Work Guidance Addresses COVID-19 Anti-Discrimination Rules

Colorado’s statewide “Safer at Home” order currently remains in effect, with recent updates permitting select opening capacity for restaurants, children and sports camps, and private campsites.  As the Executive Order has been extended, employers should pay attention to provisions concerning reasonable accommodations and anti-discriminations contains therein.  In an effort to address concerns about returning to work, the Colorado Department of Labor and Employment (CDLE) released a Paid Leave and Unemployment FAQ, and Colorado Civil Rights Division (CRD) followed up with Guidance on the Safer at Home Executive Order for Employers and Employees.

Both the FAQ and Guidance address employee concerns about returning to work, noting that “vulnerable” individuals cannot be compelled to return to work.  The Guidance defines “vulnerable individuals” to mean:

• Individuals who are 65 years of age or older;
• Individuals with chronic lung disease or moderate to severe asthma;
• Individuals who have serious heart conditions;
• Individuals who are immunocompromised;
• Pregnant women; and
• Individuals determined to be at high risk of severe illness from COVID-19 by a licensed health care provider.

Employers are required to accommodate vulnerable individuals with remote work, if possible.  Those who cannot return to work because of their condition and because remote work is not possible will be eligible for continuation of benefits and unemployment.  Similar accommodations must be made for individuals experiencing a lack of childcare due to school closures, such as remote work or flexible scheduling.

The Guidance provides an overview of how the Colorado Anti-Discrimination Act (CADA) intersects with COVID-19.  Employees with disabilities (such as pregnancy or other disability) that puts them at high-risk for complications related to COVID-19 may request reasonable accommodations.  Examples of accommodation include requesting telework or sick leave.

Employers may not ask about the employee’s medical condition that could make them vulnerable to further complications, and as always, must maintain the confidentiality of employee medical information.  Employers are also prohibited from discriminatory or unfair employment practices against individuals who show signs of COVID-19 or are in contact with someone infected with COVID-19.

Keep in mind that the EEOC issued its own guidance on managing individuals who are at “higher risk for severe illness” due to COVID-19. Employers must be sure to follow both federal and state rules and provide the most protection to applicable employees.

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