Can I require my employee to get a vaccine?

Yes, though you must consider requests to abstain due to medical or religious objections. There may be further guidance issued on this subject as the vaccine becomes more available. If you do require vaccines, and an employee refuses to comply, you can fire that employee, but make sure you treat all employees the same way.

Can I require employees to give me testing results?

Employers should make it their policy that employees are required to disclose a diagnosis for COVID-19, and that employee should not return to the office until medically cleared to do so. Employers may ask all employees who will be physically entering the workplace if they have COVID-19 or symptoms associated with COVID-19 and ask if they have been tested for COVID-19. However, if an employee states they do not have COVID-19, or symptoms, after being tested, an employer cannot then ask for additional medical information.

How do I talk to my employees if they mention a health condition?

It’s important to know that an employee asking for accommodations doesn’t have to use “magic words” and doesn’t have to say they need an accommodation. They may say they need help, or are struggling to meet the demands of their job. They do need to tell you the reason is because of a health condition, and if they do, you can ask what the condition is to determine if it might be covered by the Americans with Disabilities Act.

A covered disability is one that impacts a major life function, like the ability to read, write, drive, walk, or think. There are many disabilities that are covered, and you may want to talk with an attorney if you aren’t sure. You can also ask what your employee what potential accommodations they have in mind that might help them do their work, and you can come up with suggestions as well. You do not need to have a note from their doctor, but you can request one.

When it comes to covid symptoms, what can I ask an employee about?

If an employee has a confirmed case of COVID-19 or symptoms associated with COVID-19, their presence would pose a direct threat to the health or safety of others and they should not be allowed to come to work physically. You have an obligation to provide a safe workplace, so as an employer, you have a right to ask some questions.

Specifically, you may ask all employees who will be physically entering the workplace if they have COVID-19 or symptoms associated with COVID-19, and ask if they have been tested for COVID-19. You should not single out specific employees to ask these questions, unless they are showing symptoms associated with COVID-19 in the workplace. You should not ask these questions to employees who are teleworking and are not physically interacting with coworkers or others (for example, customers).

If you plan to keep records of employees’ responses, you should segregate them and keep them confidential, in the same manner as other documents that contain employee medical information.

What can I ask a new hire as far as their COVID-19 history, vaccination status, and precautions?

Treat new employees the same way you treat current employees. Do not ask about whether they have previously had a positive diagnosis of COVID-19 or whether they have had an antibody test. You can require all employees to get a vaccine (see answer to question 1). You may not single out any employee to ask about their personal precautions; instead, you should encourage all employees to disclose any heightened risk of exposure.

Can I terminate someone who says they will only work remotely?

You will want to consider a few things before terminating an employee who can only work remotely. The Governor’s state-wide mandate strongly encourages remote work whenever possible.

First, can the work be done remotely? If the employee has a disability, remote work may be an accommodation for that disability. If your employee’s work cannot be done remotely, you may need to consider if there is other work they can do that might either allow them to work remotely, even part of the time, or allow them to socially distance. If the employee has a disability that requires them to work remotely, exploring these options first would be required.

If an employee tests positive, how much do I share with others?

An employer should notify other workers with whom the COVID-positive employee has been in contact that they have potentially been exposed to the virus. However, in accordance with the ADA, employers should maintain as much information confidential as possible.

An employer should not disclose the employee’s name, specific identifiers, or any other medical information of the employee (including whether the employee has underlying conditions) when notifying others. Using general identifiers when notifying others is acceptable, i.e., “someone working at this job site,” or “someone on the fourth floor.” The employer may not confirm the identity of the infected employee when asked by other workers.

The employee who tests positive should be directed to stay home and quarantine under current CDC guidelines before physically returning to the workplace. While physically absent from the workplace, if the employee is teleworking or on leave, the employer may disclose that the employee is either teleworking or on leave, but may not share the reason with other employees. 

When sharing information with a company officer or manager who has a legitimate need to know of the employee’s condition, any such officer or manager must be instructed to maintain confidentiality.

If an employee is on leave because of COVID-19, what happens with benefits?

The benefits for an employee on leave for COVID-19 should be handled consistently with employees taking leave for any other reason. Additionally, Colorado’s Healthy Families and Workplaces Act requires all employers to provide paid sick leave if an employee needs to:

  • Self-isolate and care for oneself because the employee is diagnosed with a communicable illness that is the cause of a public health emergency;

  • Self-isolate and care for oneself because the employee is experiencing symptoms of a communicable illness that is the cause of a public health emergency;

  • Seek or obtain medical diagnosis, care, or treatment if experiencing symptoms of a communicable illness that is the cause of a public health emergency;

  • Seek preventative care concerning a communicable illness that is the cause of a public health emergency; or

  • Care for a family member who is self-isolating, needs medical diagnosis, treatment, or care, or is seeking preventative care due to the communicable illness that is the cause of the public health emergency. 

Additionally, paid sick leave is available under the HFWA to employees if:

  • A state, local, or federal public health official or the employee’s employer determines that the employee’s presence on the job or in the community would jeopardize the health of others or where the employee must care for a family member who has been deemed to jeopardize the health of others.

  • The employee needs to care [for] a child or other family member when the individual’s child care provider is unavailable due to a public health emergency, or if the child’s or family member’s school or place of care has been closed by a local, state, or federal public official or at the discretion of the school or place of care due to a public health emergency; or

  • The employee has a health condition that may increase susceptibility to or risk of a communicable illness that is the cause of the public health emergency.

If I lay off my employees, will they be eligible for unemployment?

Unemployment Insurance (UI) is a state-operated fund paid into by employers for the benefit of temporarily unemployed workers. If employees are laid off or terminated through no fault of their own and earned at least $2,500 in wages, they are eligible to receive unemployment benefits. 

The following employers must pay into the state Unemployment Insurance (UI) fund according to state law:

  • Business that paid wages of $1,500 or more in a calendar quarter

  • Businesses that employed at least one person for a partial or full day in each of 20 different weeks (no consecutive-week requirement) during the current or preceding calendar year 

  • Employers who employed domestic help in a private home and paid cash wages of $1,000 or more to one or more workers in any calendar quarter

  • Employers who paid cash wages of $20,000 or more to one or more agricultural workers in a calendar quarter or employed 10 or more agricultural workers for partial/full day in each of 20 different weeks during a calendar year.

  • Agricultural crew leaders

  • Religious, charitable nonprofit, or educational institutions who meet the description in IRC 501(c)(3) and employed at least four employees for partial or full days in each of 20 different weeks in a calendar year

  • Corporate Officer in a Corporation or S Corp

  • Employers who acquired all or part of a state trade, business, organization, or a substantial portion of assets from a predecessor employer who is liable to pay UI premiums

  • State agencies, state-operated hospitals or schools of higher education, or political subdivisions of the state

  • Employers who voluntarily elected to participated in the UI program and whose participation is approved

If you have not paid the required UI premiums, you can create an account and make payments.

How do I choose employees for furloughs, layoffs, or terminations?

When making the financial decision to eliminate employees temporarily or permanently, selecting which employees to cut must be done without any consideration for age, gender, race, disability or health condition, or other traits that a person cannot change about themselves. You may consider things such as prior discipline or performance history, or seniority.

How much do I have to explain my decisions?

You do not need to give written explanations for the reason you are terminating employees, but be aware that if employees apply for unemployment insurance benefits, you’ll need to give the same reason in response to that application as you gave to the employee.