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GUIDANCE TO EMPLOYERS AND PLACES OF PUBLIC ACCOMMODATION
REGARDING EQUAL OPPORTUNITY EMPLOYMENT AND REASONABLE
ACCOMMODATIONS DUE TO THE PRESENCE OF COVID-19
My administration, along with other State, local, and federal authorities, has undertaken a
wide array of actions to mitigate the effects of coronavirus disease 2019 (COVID-19), prevent
further spread, and preserve our healthcare resources. During this pandemic, it is vital that all
Coloradans are afforded civil rights protections. I am providing the following guidance to
employers and places of public accommodation to ensure equal opportunity employment and to
provide reasonable accommodations for individuals, including those with COVID-19, exposure
to COVID-19, and symptoms of COVID-19, as long as the accommodations do not create an
undue burden on the employer.
FINDINGS
1. On March 5, 2020, the Colorado Department of Public Health and Environment’s
(CDPHE) public health laboratory confirmed the first presumptive positive COVID-19
test result in Colorado. Since then, the number of confirmed cases has continued to climb
and there is widespread community spread throughout the State.
2. The Centers for Disease Control and Prevention (CDC), within the United States
Department of Health and Human Services, recommends community mitigation
strategies, including social distancing measures to limit the spread of the virus. People
gathering in large numbers is an area of concern for possible transmission of the disease.
3. CDPHE has taken action through the Safer at Home Public Health Order and many
county and local governments across Colorado have also taken their own steps to protect
Coloradans and our communities from COVID-19. Together, the goal is to protect public
health and safety while ensuring that Coloradans are all afforded their civil rights.
4. The U.S. Equal Employment Opportunity Commission (EEOC) enforces workplace anti- discrimination laws, including the Americans with Disabilities Act (ADA) and the
Rehabilitation Act (which include requirements for reasonable accommodation and non- discrimination based on disability and rules about employer medical examinations and
inquiries), Title VII of the Civil Rights Act (which prohibits discrimination based on
race, color, national origin, religion, and sex, including pregnancy), the Age
Discrimination in Employment Act (which prohibits discrimination based on age, 40 or
older), and the Genetic Information Nondiscrimination Act.
5. The ADA requires employers to provide reasonable accommodations for known
limitations of applicants for employment and employees with disabilities.
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May 21, 2020
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GUIDANCE
I am providing the following guidance to employers and places of public accommodation
within the State concerning how to ensure equal opportunity employment and reasonable
accommodations or efforts.
Guidance to Employers
1. Employers should make reasonable accommodations for individuals with disabilities
(absent undue hardship) during a pandemic (such as COVID-19) that would allow such
individuals to continue to have employment.
2. Employers should follow the evolving guidance from state and local public health
authorities that will change as the COVID-19 pandemic evolves and employers should
follow the most current information on maintaining workplace safety.
3. Employers with employees covered by the ADA may ask such employees if they are
experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms
such as fever, chills, cough, shortness of breath, or sore throat. Employers must consider
or maintain all information about employee illness as a confidential medical record in
compliance with the ADA.
4. Employers may require a doctor’s note certifying fitness for duty. As a practical matter,
however, doctors and other health care professionals may be too busy during and
immediately after a pandemic outbreak to provide fitness-for-duty documentation.
Therefore, new approaches may be necessary, such as reliance on local clinics to provide
a form, a stamp, or an e-mail to certify that an individual does not have COVID-19.
5. Employers may screen job applicants for symptoms of COVID-19 after making a
conditional job offer, as long as it does so for all entering employees in the same type of
job. This ADA rule applies whether or not the applicant has a disability.
6. Employers may withdraw a job offer if the employer needs the applicant to start
immediately but the individual has COVID-19 or symptoms of COVID-19.
7. Employers may not postpone or withdraw a job offer because the individual is at higher
risk of contracting COVID-19, such as being 65 years old or pregnant. Being a vulnerable
individual does not justify unilaterally postponing the start date or withdrawing a job
offer. However, an employer should consider allowing telework or to discuss with these
individuals if they would like to postpone the start date.
8. Employers should make reasonable accommodations to offer protection to an individual
whose disability puts that individual at a greater risk of contracting COVID-19 and who
therefore requests accommodations actions to eliminate possible exposure. Even with the
constraints imposed by the COVID-19 pandemic, some accommodations may meet an
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May 21, 2020
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employee’s needs on a temporary basis without causing undue hardship on the employer
and such accommodation should be made.
9. Employers are encouraged to consider accommodations for those who request reduced
contact with others due to a disability, which may include changes to the work
environment such as designating one-way aisles, using plexiglass, tables, or other barriers
to ensure minimum distances between customers and coworkers or other
accommodations that reduce chances of the individual’s exposure to COVID-19.
10. Employers are encouraged to implement temporary job restructuring of marginal job
duties, temporary transfers to a different position, or modifying a work schedule or shift
assignment to allow an individual with a disability to perform the essential functions of
the job safely while also reducing exposure to others in the workplace or while
commuting.
11. Employers may consider whether current circumstances create “significant difficulty” in
acquiring or providing certain accommodations, considering the duties of the particular
job and workplace environment. For example, it may be significantly more difficult in
this COVID-19 pandemic to conduct a needs assessment or to acquire certain items, and
delivery may be impacted, particularly for employees who may be teleworking. Or, it
may be significantly more difficult to provide employees with temporary assignments,
remove marginal functions, or readily hire temporary workers for specialized positions. If
a particular accommodation poses an undue hardship, employers and employees should
work together to determine if there may be an alternative that could be provided that does
not pose such problems.
12. Employers are encouraged to provide reasonable accommodations so long as they do not
pose an “undue hardship” which means “significant difficulty or expense.” In some
instances, an accommodation that would not have posed an undue hardship prior to the
COVID-19 pandemic may pose one now.
13. Employers may require employees to wear protective gear (for example, facial coverings
and gloves) and observe infection control practices (for example, regular hand washing
and social distancing protocols). However, where an employee with a disability needs a
related reasonable accommodation under the ADA (e.g., non-latex gloves, modified
facial coverings for interpreters or others who communicate with an employee who uses
lip reading, or gowns designed for individuals who use wheelchairs), or a religious
accommodation under Title VII (such as modified equipment due to religious garb), the
employer should discuss the request and provide the necessary modification or an
alternative if feasible and if it does not cause an undue hardship on the operation of the
employer's business under the ADA or Title VII.
14. Employees – or a third party, such as an employee’s doctor – must let the employer know
that they need an accommodation for a reason related to a medical condition (here, the
underlying condition). Individuals may request accommodation in conversation or in
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May 21, 2020
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writing. While the employee (or third party) does not need to use the term “reasonable
accommodation” or reference the ADA, they may do so.
Guidance to Places of Public Accommodation:
1. A place of public accommodation means any place of business engaged in any sales to
the public and any place offering services, facilities, privileges, advantages, or
accommodations to the public. This includes any business offering wholesale or retail
sales to the public; any place to eat, drink, sleep, or rest, or any combination thereof; any
sporting or recreational area and facility; any public transportation facility; a barbershop,
bathhouse, swimming pool, bath, steam or massage parlor, gymnasium, or other
establishment conducted to serve the health, appearance or physical condition of an
individual; a campsite or trailer camp; a dispensary; a mortuary, undertaking parlor, or
cemetery; an educational institution; or any building, park, arena, theater, hall,
auditorium, museum, library, exhibit, or public facility of any kind whether indoor or
outdoor.
2. No individual should post or permit to be posted in any place of public accommodation
any sign that states or implies the following: “We reserve the right to refuse service to
anyone.” Such signage implies that management may rely on unlawful discriminatory
factors in determining access to a place of public accommodation and thus is prohibited,
per Colorado Civil Rights Commission (CCRC) Rule 20.4.
3. Places of public accommodation are not prohibited from asking an individual without a
mask (and therefore not complying with public health orders) to leave their
establishment, unless such request invokes another form of discrimination, i.e. only
asking patrons of a particular protected class (disability, race, creed, color, sex, sexual
orientation (including transgender status), marital status, national origin, or ancestry) to
leave for this purpose. Please see paragraph 5, below, concerning those individuals who
cannot wear masks due to a disability.
4. Places of public accommodation may exclude an individual with a disability from
entering an establishment or participating in an activity or service offered, if that
individual’s presence or participation would result in a direct threat to the health or safety
of others. The determination that an individual poses a direct threat to the health or safety
of others may not be based on generalizations or stereotypes about the effects of a
particular disability; it must be based on an individual assessment that considers the
environment, activity or service offered by the particular establishment and the actual
abilities and disabilities of the individual. This guidance is not applicable to healthcare- related places of public accommodation.
5. Places of public accommodation should make reasonable efforts that allow individuals
with a disability (i.e. breathing issues, facial disfigurement, etc.) that prevent them from
wearing a mask to enter or use a place of public accommodation, unless the place of
public accommodation can demonstrate that it would cause an undue burden or that it
would require any additional expense that would not otherwise be incurred.
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May 21, 2020
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6. Places of public accommodation should make reasonable efforts to grant access and
services to all customers. Reasonable efforts may require structural change, such as
constructing a ramp or providing accessible parking spaces, or it may require a change in
policy to allow the individual with a disability to fully use and enjoy the premises.
Businesses are encouraged to consider offering curbside delivery or pickup, when
practicable, as an accommodation for patrons who are vulnerable individuals or who are
unable to wear a mask because of a disability.
Employees or applicants can complete an intake form to intimate a complaint of
discrimination here. For more information or guidance, employers, employees, and places of
accommodation are encouraged to visit the Colorado Civil Rights Division at
https://www.colorado.gov/pacific/dora/civil-rights. As Coloradans, we are all in this together and
I appreciate your efforts to make Colorado a safer and more inclusive state.
GIVEN under my hand this twenty- first day of May, 2020.
Jared Polis
Governor