As part of Colorado’s ongoing effort to limit the spread of the novel coronavirus disease (COVID-19), Denver Mayor Michael Hancock issued a “Stay-at-Home Order” (the “Denver Order”) requiring individuals in the city and county of Denver to stay at their place of residence except to conduct certain activities, effective March 24, 2020 through April 10, 2020, unless otherwise modified. Most notably, all nonessential businesses operating in Denver must cease in-person work operations except for certain “minimum basic operations.”

The Denver Order provides multiple, broad categories defined as “essential.” These include Essential Activities, Healthcare Operations, Essential Infrastructure, Essential Governmental Functions, Essential Businesses and Essential Travel.

The Denver Order provides the following categories of Essential Infrastructure:

1. Utilities, including power generation, fuel supply and transmission.
2. Water, sewer, gas, sanitation and electrical services.
3. Construction operations and projects, including commercial and residential construction (especially affordable housing or housing for individuals experiencing homelessness), government construction for public infrastructure and facilities, construction necessary to support or maintain the operation of any essential business, and renovation or restoration construction services. Construction businesses must develop and strictly implement written physical distancing protocols.
4. Skilled trades, such as electricians and plumbers.
5. Other related firms and professionals who provide services necessary to maintain the safety, sanitation and essential operation of residences.
6. Airport operations (including passenger and cargo operations and services).
7. Oil refining and oil and gas operations.
8. Roads and highways.
9. Public transportation.
10. Solid-waste collection and removal.
11. Internet and telecommunications systems, including the provision of essential global, national and local infrastructure for computing services, business infrastructure, communication and web-based services.

The Denver Order further provides the following categories of Essential Businesses:

1. Healthcare Operations, Essential Infrastructure and Essential Governmental Functions.
2. Grocery stores, certified farmers markets, farm and produce stands, supermarkets, food banks, convenience stores, and other establishments engaged in the retail sale of canned food, dry goods, fresh fruits and vegetables, pet supplies, fresh meats, fish, poultry, and any other household consumer products (such as cleaning and personal care products). This includes stores that sell groceries and also sell other non-grocery products and products necessary to maintain the safety, sanitation and essential operation of residences.
3. Food and plant cultivation, including farming, livestock and fishing.
4. Businesses that provide food, shelter, physical services and other necessities of life for economically disadvantaged or otherwise needy individuals.
5. Newspapers, television, radio and other media services.
6. Gas stations and auto-supply, auto-repair and related facilities.
7. Banks and related financial institutions.
8. Hardware stores.
9. Plumbers, electricians, exterminators and other service providers who provide services that are necessary to maintain the safety, sanitation and essential operation of residences, Essential Activities and Essential Businesses.
10. Businesses providing mailing and shipping services, including post office boxes.
11. Educational institutions – including public and private K-12 schools, colleges and universities – for purposes of facilitating distance learning or performing essential functions, provided that physical distancing of six feet per person is maintained to the greatest extent possible.
12. Laundromats, dry cleaners and laundry service providers.
13. Restaurants and other facilities that prepare and serve food, but only for delivery, takeout or drive-through […] and other entities that typically provide free food services to students or members of the public […] on the condition that the food is provided to students or members of the public on a pickup and takeout basis only. Restaurants and other facilities that prepare and serve food or beverages at airports may provide on-site dining but must comply with physical distancing requirements. Except for employees and volunteers who must eat meals during their work shift, schools and other entities that provide food services under this exemption may not permit the food to be eaten at the site where it is provided or at any other gathering site.
14. Businesses that supply products needed for people to work and learn from home, including technology suppliers providing hardware or software essential for communication or connectedness.
15. Businesses that supply other essential businesses with the support or supplies necessary to operate.
16. Businesses that ship or deliver groceries, food, goods or services directly to residences.
17. Indoor/outdoor malls are closed except to the extent that they must remain open to allow operation of and access to Essential Businesses.
18. Licensed marijuana stores, as long as written physical distancing protocols are developed and strictly implemented to limit the number of people on the licensed premises at the same time.
19. Licensed liquor stores, as long as written physical distancing protocols are developed and strictly implemented to limit the number of people on the licensed premises at the same time.
20. Airlines, taxis, other private transportation providers and those in transportation support, including automobile or bicycle repair shops, providing transportation services necessary for Essential Activities and other purposes expressly authorized in the Denver Order.
21. Home-based care for seniors, adults or children. Nanny and babysitting services are not permitted under the Denver Order unless the nanny or babysitter (1) resides in the home of the senior, adult or children for whom they are providing care; (2) provides medical care to the senior, adult or children; or (3) is providing care in order to allow parents or guardians of a senior, adult or children to work for an Essential Business or perform an Essential Governmental Function.
22. Residential establishments and facilities, including hotels, motels, and shelters for seniors, adults and children.
23. Professional services, such as legal, insurance, accounting, real estate and tax preparation services, including ancillary and supporting services.
24. Faith-based establishments and houses of worship, including but not limited to churches, synagogues, chapels and mosques; however, these institutions are strongly encouraged to implement an electronic platform for services and/or more frequent services with smaller congregations.
25. Child care facilities providing services that enable employees exempted in the Denver Order to work as permitted. To the extent possible and in accordance with existing law, child care facilities must operate under the following mandatory conditions: (1) child care must be carried out in stable groups of 10 or fewer (“stable” means that the same 10 or fewer children are in the same group each day); (2) children may not change from one group to another; (3) if more than one group of children is cared for at one facility, each group must be in a separate room – groups may not mix with each other; and (4) child care providers must remain solely with one group of children.

The Denver Order comes on the heels of Executive Order D 2020 013 (the “Governor’s Order”) issued by Gov. Jared Polis on Sunday, March 22, 2020, mandating that employers cut the number of in-person workers at businesses by 50% by Tuesday, March 24. The Colorado Department of Heath & Environment offered further guidance on the implementation of the Governor’s Order.

Like the Denver Order, the Governor’s Order, as clarified, provides multiple, broad categories of “Critical Business,” including Healthcare Operations; Critical Infrastructure; Critical Manufacturing; Critical Retail; Critical Services; News Media; Financial Institutions; Providers of Basic Necessities to Economically Disadvantaged Populations; Construction; Defense; Critical Services Necessary to Maintain the Safety, Sanitation and Critical Operations of Residences or Other Critical Businesses; Vendors That Provide Critical Services or Products, Including Logistics and Technology Support, Child Care and Services; and Critical Government Functions.

The Denver Order, which applies to the entire city of Denver, takes a stricter stance on the operation of businesses and requirements related to individual travel outside the home. Notably, under the Denver Order, businesses do not have an exception solely related to employees’ abilities to physically distance themselves in the workplace, and the 50% reduction in employees at the workplace no longer applies for employers operating in the city of Denver. To be clear, the Denver Order applies only in the city of Denver and not for the remainder of the state of Colorado.

For businesses that are nonessential, both the Denver Order and the Governor’s Order encourage employers to make every effort to ensure employees can work remotely. In addition, the Denver Order states that businesses may continue to conduct the minimum necessary to maintain the value of the business’s inventory, ensure security, process payroll and employee benefits, perform duties needed to enable employees to work from home, and facilitate the ability to continue filling online orders. All businesses still must ensure that as well as possible, employees are abiding by physical distancing, hand-washing and similar requirements.

In conclusion, while the Denver Order and the Governor’s Order have wide-reaching implications, even if a business is ultimately considered nonessential, an employer may nonetheless operate its business remotely and perform the duties necessary to maintain essential operations of the business. Before making any major alternations to their business, employers are encouraged to consult with legal counsel to better understand how the Denver Order and Governor’s Order, as applicable, apply to their business; to stay apprised of the quickly evolving situation; and to ensure compliance with certain city, state and federal laws, including paid leave requirements.