COVID-19 Legal FAQ – UPDATED Educational Institutions Designated as a Critical Business

Memorandum

From:  CEA Legal Center

Date: November 18, 2020

RE: COVID-19 Legal FAQ – UPDATED Educational Institutions Designated as a Critical Business


This memorandum serves as a guidance to frequently asked questions presented to the CEA Legal team regarding how to respond to the unprecedented epidemic sweeping our nation. The FAQ’s will be updated as we address questions from the field. Please be patient and understand that these circumstances present new and uncharted areas of law. CEA Legal will provide the best advice it can based on its understanding of current law however, the law is unclear in many areas.

PLEASE NOTE: This is an updated FAQ regarding Colorado’s current Public Health Order. The main changes in the new Public Health Order are:

  1. It includes a new dial with a new level (Purple)
  2. It adds pregnancy and smokers to the list of those that are identified as an “individual at risk of severe illness from COVID-19”

On November 17, 2020, the Colorado Department of Public Health & Environment (“CDPHE”) issued a First Amended Public Health Order 20-36 (“PHO”).1 This new PHO is effective November 20, 2020. The overall purpose of the updated PHO was to add an additional level to the COVID dial, edit the capacity limits under the various levels, and add additional groups of individuals to the “at risk” definition. The new dial looks like this:

Updated COVID-19 dial for Colorado as of November 20, 2020

Under this PHO, preschool through 12th grade public schools are considered to be “critical services” for the purposes of both “facilitating or providing materials for distance learning” and providing in-person learning in consultation with a school district’s public health agency. In prior public health orders, while “providing essential services to students” was considered a “critical service,” in-person learning was not explicitly identified.

Under the new COVID dial, P-12 schools can operate in the following manner2:

Table showcasing P-12 school operating status under certain COVID-19 dial conditions

The designation of public schools as “critical services” means that they can continue operation, including in-person learning, without capacity limits, no matter what level of the COVID-19 Dial a county is on. Please note that this does not mean that school districts have to continue in-person learning; that decision is usually governed by school district policies and/or collective bargaining.

While there are no capacity limits for school districts, as a critical business, school districts must comply with directives requiring them to maintain a clean and safe work environment by the CDPHE and any local health department. They must also follow the requirements set forth in this PHO for “critical businesses” and for “all businesses and government functions.” This includes distancing requirements, adopting home or tele-work policies for any work that can be done remotely, face coverings for anyone in public indoor settings unless they are 10 years old or younger, and disease prevention measures for within the workplace and with employees.3 This PHO also explicitly states that public schools must work with local and state public health offices and follow case and outbreak guidance when COVID-19 is confirmed, or suspected, in students and/or staff.

Being a critical service does not change the requirement that employers must provide school district employees with reasonable accommodations if they are an “individual at risk of severe illness from COVID-19.” Under the PHO, an individual at risk of severe illness of COVID-19 includes those who: (1) are 65 years and older; (2) have cancer; (3) have chronic kidney disease; (4) have chronic obstructive pulmonary disease; (5) are immunocompromised; (6) have a body mass index of 30 or higher; (7) have serious heart conditions, such as heart failure, coronary artery disease, or cardiomyopathies; (8) have Sickle cell disease; (9) have Type 2 diabetes mellitus; (10) are pregnant; (11) smoke; and (12) anyone determined to be high risk by a licensed healthcare provider. A school district must provide reasonable work accommodations to anyone who falls in this category, prioritizing telecommuting, because these individuals “shall not be compelled to go to work” during the pandemic. School districts are also “encouraged” to provide accommodations to anyone who resides with or is caring for such an individual or facing child care needs while schools remain closed.

Being designated as a critical business may also provide members with some advantages.4 Determinations on this will depend on what is put into place during this pandemic.

If you have any questions, please feel free to reach out to CEA Legal.

1This PHO can be found at: https://drive.google.com/file/d/1N6ofsmJk5gGkEvX34UPD_b3vBmg5hrMz/view
2https://covid19.colorado.gov/data/covid-19-dial
3For a list of these requirements, please see Sections III.B. and III.C. of the PHO, pages 19-22.
4For example, in March 2020, Governor Jared Police issued an executive order extending a full tuition credit to essential workers that lasted through May 24, 2020.