Last updated August 21, 2020

COVID-19 has forced the closure of many businesses throughout the country, and the courthouses where Davis Graham clients frequently litigate are subject to these same pressures. The limitations and closures of courts in Colorado and elsewhere vary widely from state to state and even within each state. Davis Graham attorneys continue to monitor these closures and limitations. Please contact David Holman if you would like Davis Graham to monitor additional states or courts.

Colorado

Federal Courts in Colorado

• U.S. Court of Appeals for the Tenth Circuit
  • Operational Response to COVID-19 Pandemic
  • General Order, June 12, 2020
    Effective June 15, 2020, the Byron White Courthouse will reopen only to members of the public who have pending business with the court.
• District of Colorado
  • General Order 2020-14
    Modifies General Order 2020-10. All civil and criminal trials scheduled to commence now through September 4 are continued.
  • General Order 2020-11
    Guiding jury operations in Grand Junction and Colorado Springs beginning August 3, 2020.
  • General Order 2020-10
    Requiring non-employee entrants to Courthouses and Probation Offices to wear a face covering. The Clerk’s Office and Probation Offices remain closed to public entry. Supersedes General Orders 2020-1, -3, -8, and -9.
  • General Order 2020-9
    Modifying certain dates in General Order 2020-6.
  • General Order 2020-8
    All civil and criminal trials scheduled to commence through July 6, 2020 are continued subject to further order of the presiding judicial officer.
  • General Order 2020-7
    Appointing the Federal Public Defender to decide whether defendants are eligible to petition the Court for compassionate release under the First Step Act.
  • General Order 2020-6
    All civil and criminal trials scheduled to commence though May 29 are continued. All grand jury proceedings are suspended through May 29.
  • General Order 2020-5
    Provides for electronic transmission of bond reports
  • General Order 2020-4
    Provides for video/telephonic conferencing of certain criminal proceedings.
  • General Order 2020-3
    Until May 1, 2020 only persons with official court business may enter the courthouses and U.S. Probation Offices of the U.S. District Court for the District of Colorado. The Clerk’s Office and Probation Offices are closed to public entry. All civil and criminal trials scheduled to commence through May 1 are continued. All grand jury proceedings are suspended through May 1.
  • General Order 2020-2
    All civil, criminal petit, and grand jury selections and jury trials scheduled to commence March 13 through April 3 are continued pending further order of the assigned judge.
  • General Order 2020-1
    Certain visitors, including persons who recently traveled abroad or have been exposed to COVID-19, are prevented from entering courthouses or courtrooms.

State Courts in Colorado

• Colorado Supreme Court
  • Important Announcements Page
  • Updated Order Regarding COVID-19 (July 24)
    No person shall be required to report for jury service before August 3, 2020.
• Colorado Supreme Court’s Message to Colorado Attorneys
• Colorado Court of Appeals
  • Order
    All oral arguments scheduled for March 2020 and April 2020 have been vacated.
  • Oral Arguments Via Web Ex Through Fall 2020
    All oral arguments are currently conducted remotely via Web Ex.

• Colorado Judicial Districts
  • 1^st
    Judicial District
    Courts have limited operations through July 5; all appearances except for matters concerning public safety have been vacated and continued.
  • 2^nd
    Judicial District
    The 2^nd Judicial district will resume jury calls in progressive phases.
    • Joint Administrative Order 2020-05
    • Administrative Order 2020-08
      Between August 3^rd and August 28^th, the 2^nd district will conduct two jury calls for District Court each Monday and Tuesday, two County Court jury calls each Wednesday and Thursday, and one jury call for District Court Juvenile.
  • 3^rd
    Judicial District
    All court hearings set through May 31 will be continued for 60 days, with listed exceptions. The court is operating on an emergency basis, open Monday through Friday 8 a.m. to noon and 1 p.m. to 4 p.m. for essential functions.
    • Administrative Order 20-04
    • Administrative Order 20-05
    • Administrative Order 20-07
    • Administrative Order 20-09
    • Notice Regarding COVID-19
• • 4^th
    Judicial District
    The El Paso County Courthouse and Teller County Courthouse are open to the public on a limited basis from August 1 through August 31.
    • Chief Judge Order 20-25
    • Chief Judge Order 20-21
    • Chief Judge Order 20-20
    • Chief Judge Order 20-19
• • 5^th
    Judicial District
    The 5^th Judicial District is seeking a waiver to permit jury trials to proceed between July 6 and August 3, 2020.
    • Amended Administrative Order 2020-102A-4
• • 6^th
    Judicial District
    • Second Amended Administrative Order No. 2020-3
    • Administrative Order 2020-07
    • Administrative Order 2020-08
    • Administrative Order 2020-09
• • 7^th
    Judicial District
    Certain visitors are requested not to come to the courthouse.
  • 8^th
    Judicial District
    Although Chief Justice Coats’ June 15, 2020 order precludes summoning people for jury service prior to August 3, a decision has not yet been made as to whether to request a waiver from the Chief Justice for jury trials scheduled to begin on or after July 13, 2020.
    • Third Amended Administrative Order 2020-2
    • Fort Collins Temporary Operation Procedures
    • Loveland Temporary Operation Procedures
    • Administrative Order 2020-7 Regarding Prohibited Conduct in Court Facilities
• • 9^th
    Judicial District
    Courthouse access is limited to listed matters concerning public safety.
    • Administrative Order 20-01.A
    • Administrative Order 20-02 (WebEx Procedures)
    • Administrative Order 20-03
    • Administrative Order 20-05
• • 10^th
    Judicial District
    Certain departments are closed to in-person activity until further notice. For docketed matters beginning March 23, each division shall initiate rescheduling or hearing by phone conference.
    • Administrative Order 20-02
• • 11^th
    Judicial District
    By June 1, it is anticipated that most judicial employees will have returned to work. Criminal cases will resume; civil cases may be heard but hearings may be limited or delayed.
    • Second Amended Chief Judge Directive
• • 12^th
    Judicial District
    Matters scheduled after June 1 and through July 5 will primarily be heard through audio or video means. All civil jury trials scheduled between now and August 31, 2020 shall be vacated.
    • Administrative Order No. 2020-03 (amended May 11)
• • 13^th
    Judicial District
    The court is attempting to maintain normal operations to the fullest extent possible. Certain visitors are requested not to come to the courthouse.
    • 13^th
      Judicial District COVID-19 Response and Continuity of Operations Guideline
• • 14^th
    Judicial District
    Except for matters concerning public safety, all other appearances, hearings, and trials will likely be continued at a later date. Parties or counsel shall contact the court to reschedule.
    • Chief Judge Order 2020-08
    • Amended Administrative Order 2020-04
    • Chief Judge Directive 2020-05
• • 15^th
    Judicial District
    Except for listed matters concerning public safety, all appearances set from March 17 to May 1 are vacated and continued.
  • 16^th
    Judicial District
    Trial courts are operating on a limited basis.
    • Administrative Order 2020-05
    • Amended Administrative Order 2020-05A
    • Second Amended Administrative 2020-05B
    • Administrative Order Regarding D&N Proceedings
    • Third Amended Administrative Order 2020-05C
• • 17^th
    Judicial District
    The courts will continue to operate with primarily virtual dockets for the month of August 2020.
    • Sixth Amended Administrative Order 2020-01 A6
• • 18^th
    Judicial District
    • Fourth Amended Chief Judge Order 20-06
      Limited jury trials have resumed in specified circumstances.
    • Chief Judge Order 20-08 Regarding Court Operations in Arapahoe County
    • Chief Judge Order 20-09 Regarding Court Operations in Douglas County, Elbert County, and Lincoln County
• • 19^th
    Judicial District
    It is not anticipated that the Court will be in a position to resume normal operations on August 3, 2020; therefore, it is likely that matters scheduled after August 3, 2020 will primarily be heard through audio or video means.
    • Fourth Revised Administrative Order 2020-06
• • 20^th
    Judicial District
    If you have a court date at the Boulder County Jail at 1:30pm, Monday through Friday, you are required to appear at the Boulder County Jail on the date and time scheduled.
  • 21^st
    Judicial District
    All felony criminal trials scheduled to commence prior to October 6, 2020 shall be continued. Judges may submit a written request to the Chief Judge for approval to conduct civil and misdemeanor criminal jury selections for trials scheduled to begin on or after August 31.
    • Administrative Order 2020-16
    • Administrative Order 2020-15
    • Administrative Order 2020-14
    • Administrative Order 2020-10
• • 22^nd
    Judicial District
    Except for matters concerning public safety, most other appearances, hearings, and trials set through July 5 will be by video or telephone.
    • Administrative Order 2020-04
    • First Amended Administrative Order 2020-02
    • Administrative Order 2020-03

Montana

Montana State Courts (no updates since 5/22)

• Montana Supreme Court
  • March 27 Order
    All civil jury trials shall be suspended until after April 10, 2020.
  • April 27 Memo from Chief Justice McGrath
    Extending the March 27 order until May 4.
  • COVID-19 Memo from Chief Justice McGrath 5-22-2020
• District Courts
  • Local Rules on COVID-19

Nevada

Nevada State Courts

• Nevada Supreme Court and Court of Appeals
  • In Re COVID-19 Emergency Oral Argument Procedures
• District Courts
  • Public Portal for Orders Imposing COVID-19 restrictions

New Mexico

New Mexico State Courts

• New Mexico Courts – COVID-19 Page
  People entering New Mexico courthouses are required to wear a face covering.
• New Mexico Supreme Court
  • June 16 Order
    Setting plea and settlement deadline for cases in which jury selection or bench trial is scheduled to begin on or after July 1.
  • July 6 Order
    Adopting health emergency protocols related to judicial buildings and proceedings.

North Dakota

United States District Court for the District of North Dakota

• Administrative Order 5/12
  All jury trials presently scheduled between March 16, 2020 and July 3, 2020 are continued.

North Dakota State Courts

• Coronavirus Response Guidance
• Compiled Emergency Orders
• North Dakota Supreme Court Order 25. Coronavirus Pandemic (amended April 15)
  Civil and criminal jury trials are suspended through July 1 unless otherwise ordered by the Court.

Ohio

Ohio State Courts

• Coronavirus Resources
• Supreme Court of Ohio Guidance to Local Courts
• Responsible Restart Ohio Court Access

Oklahoma

Oklahoma State Courts

• Supreme Court and Court of Criminal Appeals
  • March 16 Order
  • March 23 Order
  • March 25 Order
  • March 27 Order
  • April 29 Order
    In all cases, the period from March 16 to May 15 will be treated as a tolling period. Beginning on May 16, all rules and procedures, and all deadlines, shall be enforced.

Texas

Texas State Courts

• Emergency Orders for COVID-19
  As of August 11, five emergency orders are still in effect. Jury proceedings are prohibited until October 1 with certain exceptions.
• Current & Upcoming Closures

Wyoming

Wyoming State Courts

• Coronavirus COVID-19 Updates
• Wyoming Supreme Court COVID-19 Order (March 18)
• Wyoming Supreme Court COVID-19 Order (March 20)
• Wyoming Supreme Court COVID-19 Order (March 26)
• Wyoming Supreme Court Order Extending Emergency Orders to May 31 (April 1)
• Fourth Order Amending March 18, 2020 Temporary Plan
  No jury trials should be conducted prior to August 3, 2020. All in-person proceedings in all Circuit and District Courts and the Supreme Court in Wyoming should be suspended from the close of business on March 18, 2020 to August 3, 2020, with listed exceptions.
• Order Extending COVID-19 Emergency Procedural Orders to October 5, 2020

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (FFCRA). It applies to all employers with fewer than 500 employees. Employers may elect to exclude “health care providers” or “emergency responders” from its coverage.

The Department of Labor also has information on the new Act, including a “Questions and Answers” page. The law will take effect on April 1, 2020 and apply to leave taken between April 1, 2020 through December 31, 2020. Employers covered by the Act must post a notice of FFCRA’s requirements in a conspicuous place on its premises.

The two key pieces of the FFCRA include the Emergency Paid Sick Leave Act and the Emergency Family Medical Leave Expansion Act:

The Emergency Paid Sick Leave Act requires employers to provide paid sick leave to employees as described below:

• Employers must provide full-time employees with up to 80 hours of paid sick leave (and part-time employees the number of hours worked, on average, during a two-week period) who are “unable to work (or telework) due to a need for leave” and regardless of their length of employment, for any of the following reasons:
  • 1.“The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.”
  • 2. “The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.”
  • 3. “The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.”
  • 4. “The employee is caring for an individual who is subject to quarantine or self-quarantine relating to COVID-19.”
  • 5. “The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to COVID-19 precautions.”
  • 6. “The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.”
• Employees eligible to receive paid sick leave arising out of the circumstances described in paragraphs (1)–(3), above, are entitled to paid sick leave at their regular rate of pay, but not to exceed “$511 per day and $5,110 in the aggregate.”
• Employees eligible to receive paid sick leave arising out of the circumstances described in paragraphs (4)–(6), above, are entitled to paid sick leave at two-thirds their regular rate of pay, but not to exceed “$200 per day and $2,000 in the aggregate.”
• This paid sick leave is in addition to any paid sick leave already provided by the employer but employees may choose to first use paid sick leave under this Act.
• Employees cannot extend paid sick leave permitted under this Act into subsequent years, and employers do not have to pay out such sick leave out upon termination of employment.

The Emergency Family Medical Leave Expansion Act also expands the current Family Medical Leave Act (“FMLA”) as follows:

• Employees are eligible for benefits under the Emergency Family Medical Leave Expansion Act if they have been employed by their employer for “at least 30 calendar days.”
• The FMLA’s current 12-week leave eligibility is expanded to also cover employees unable to work so they may care for a son or daughter under the age of 18 whose school has been closed due to a public health emergency.
• The Emergency Family Medical Leave Expansion Act requires employer to partially pay eligible employees for up to 12 weeks of leave. The first 10 days of leave may be unpaid, but for the remaining period, employers must provide paid leave in no less than two-thirds of an employee’s regular rate of pay. However, “In no event shall such paid leave exceed $200 per day and $10,000 in the aggregate.”
• The Act requires that employers (unless they have fewer than 25 employees) restore employees who took covered leave to the same or equivalent position when the employees return to work.

We expect numerous questions of scope and interpretation to arise, such as whether an employee is indeed subject to a federal, state, or local quarantine or isolation order related to COVID-19, since we are currently working with clients to identify which businesses are subject to these orders. Davis Graham attorneys are available to answer your questions about this new law and related questions or concerns you have regarding COVID-19.

We have been writing about the various shelter-in-place orders issued around the country and, most recently, the many cybersecurity concerns and have now established a dedicated COVID-19 page where you can find all of the most recent statewide orders issued to date. (Please note that Pennsylvania’s order now applies to only seven counties, not the entire state.) In fact, if you are reading this alert, you have already found this page! Scroll down to view the executive orders. We also have compiled every order issued to date in Colorado as well.

As we have pointed out in prior alerts, almost all of the shelter-in-place orders have exemptions to allow essential businesses to remain open, including those in the “critical infrastructure” category defined by the Cybersecurity and Infrastructure Security Agency (CISA). However, nothing in the shelter-in-place orders requires essential businesses to stay open. Therefore, even if a government or private business is defined as essential, it may still limit services and, in some cases, either completely or partially shut down. For example, in some orders, the Colorado legislature is identified as essential, but it has suspended its session; the courts are identified as essential but in some cases are canceling trials and hearings and only accepting electronic filings; some restaurants that could be offering takeout services have entirely shuttered.

So, the question arises: How will we ensure that critical infrastructure continues to function when, despite its social responsibility to provide services, it decides to shut down for reasons such as oil prices, lack of employees, lack of cash flow, or fear of exposing individuals to COVID-19?

The answer is that some cases may be contractual. A business may have a contract with a supplier that requires the supplier to provide goods or services. If a supplier refuses to provide goods or services, despite being contractually bound to do so, the courts may provide redress through injunctive relief, depending on the circumstances. However, in most cases, the redress available may be simply monetary compensation, which will necessarily save the company that needs its supply chain to function in order to provide its goods or services. However, what happens if the supplier declares bankruptcy and triggers the automatic stay? The time delay alone may prove fatal to its business partner.

Arizona recently issued an order titled “Prohibiting the Closure of Essential Services.” But even this order does not require essential businesses “not to close.” Instead, the Order prohibits cities, counties, and towns in Arizona from issuing conflicting shelter-in-place orders which would require an essential business to shut down, including any golf course (of course) or restaurant, as long as (in those cases) previously-issued restrictions on food and beverage service and in-restaurant dining are followed.

The answer may partially be found in the forthcoming and widely anticipated federal stimulus bill known as the Coronavirus Aid, Relief, and Economic Security (CARES) Act.

This bill, which was recently passed in the Senate, provides emergency loans to distressed industries such as aviation and forgivable bridge loans to provide cash flow to allow qualifying small businesses to continue operations through incentives and grants. Check back on this site for a summary of the CARES Act once it becomes law.

In Colorado, the tools in Governor Polis’ quiver include the special powers granted to the governor pursuant to the Colorado Disaster Emergency Act, C.R.S. §§ 24-33.5-701 et seq. This Act, among other things, allows the governor to:

(a) Suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders, rules,

or regulations of any state agency, if strict compliance with the provisions of any statute, order, rule, or regulation would in any

way prevent, hinder, or delay necessary action in coping with the emergency;

(d) Subject to any applicable requirements for compensation under section 24-33.5-711, commandeer or utilize any private

property if the governor finds this necessary to cope with the disaster emergency;

and

(i) Make provision for the availability and use of temporary emergency housing.

Check back on this site for more information about the CARES Act once it becomes law.

A reality of the COVID-19 pandemic[1] is that many businesses are facing unexpected difficulties complying with their contracts. Do pandemics such as the spread of COVID-19 excuse parties from their contractual obligations? The answer is maybe, via a force majeure clause in the parties’ contract.

“Force majeure”—French for “superior force”—refers to an unexpected and uncontrollable event or effect that prevents one from honoring a contract. The term can include acts of nature, such as floods and hurricanes, and acts of people, such as strikes and wars,[2]
but does not generally include mere economic hardship.[3] For example, a force majeure provision might state:

No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Contract, for any failure or delay in fulfilling or performing any term of this Contract, when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s reasonable control, including, without limitation, the following force majeure events: (a) acts of God; (b) flood, fire, earthquake, or pandemic; (c) war, terrorist threats or acts, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of this Contract; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns, or other industrial disturbances; (i) shortage of adequate power or transportation facilities; and (j) other similar events beyond the reasonable control of the impacted party.

Ultimately, the types of events that constitute force majeure depend on the contract’s specific language.[4]
For example, in Gillespie v. Simpson, the Colorado Court of Appeals accepted a geothermal lessee’s argument that the government’s refusal to issue permits for the development of geothermal wells until certain regulatory actions occurred constituted a force majeure event, excusing the lessee from paying rent to the lessor. This was the case even though the lessee was actually able to pay rent—and did so—during the duration of the force majeure event. The contract defined force majeure as any action by the state that interferes with the lessee’s rights. The court reasoned that the interference was “obvious in that the lessee [wa]s deprived of an opportunity to generate income by development of the [wells] for payment of the rentals. Accordingly, it held that the lessee was entitled to a rent credit equal to the amount of rent paid during the force majeure event.[5]

All this is to say that parties should examine their existing contracts and consult with in-house or outside counsel to see if those contracts include a force majeure clause that may cover coronavirus—especially if the pandemic is impacting the parties’ contractual obligations. Parties should pay attention to any requirements that the party provide evidence of impacts or information, along with a notice that the party is invoking the force majeure clause, or that the party mitigate damages incurred as a result of the force majeure event. Going forward, parties should consider insisting that their contracts include epidemic or pandemic as a force majeure event in case performance becomes impossible due to COVID-19. Parties struggling to honor their contractual obligations might also consider a mutual solution, such as negotiating a contractual amendment to move performance to a time after the health crisis has passed.

Davis Graham & Stubbs LLP’s attorneys have experience litigating commercial contracts containing force majeure clauses. Please contact Shannon Stevenson or Gabrielle Robbie if you have further questions on this topic.

[1] World Health Organization, Coronavirus disease 2019 (COVID-19): Situation Report – 52 (March 12, 2020), https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200312-sitrep-52-covid-19.pdf?sfvrsn=e2bfc9c0_4.

[2] Black’s Law Dictionary, “FORCE MAJEURE” (11th ed. 2019).

[3] 30 Williston on Contracts § 77:31 (4th ed.).

[4] Id.

[5] 588 P.2d 890, 892 (Colo. 1978).

Now more than ever, it is important for organizations of all sizes to practice sound cybersecurity hygiene. And although cybersecurity is just one of many issues challenging company operations in response to the spread of COVID-19, it is an issue for which an ounce of prevention is worth a pound of cure.

The U.S. Federal Trade Commission (FTC) and the National Institute of Standards and Technology (NIST) recently issued guidance for information security when employees work remotely. The FTC guidance focuses on what employees can do, while the NIST guidance provides recommendations to organizations. Both are summarized below. But here are some steps to take now, to reiterate to employees the importance of staying safe online:

• Communicate with employees about the increased risk of cyberthreats when working from home.
• Offer practical tips like: Don’t open emails from senders you don’t know ; flag suspicious emails to your IT department; if you are asked to provide sensitive information, be sure the request is legitimate (for example by calling the sender to confirm).
• Consider conducting refresher training to remind employees about the company’s policies around information security.

The FTC guidance, in the form of a blog that can be accessed here, stresses good cybersecurity hygiene. Best practices mentioned in the guidance include:

• keeping software up to date (i.e., installing patches when made available);
• using strong, unique passwords;
• securing portable devices like laptops and mobile phones (including password-protection, locking after time out, and keeping the device physically secure);
• when working remotely with hardcopy versions of sensitive information, ensure that such materials are physically secured and disposed of appropriately (i.e., shredding).

The NIST guidance, accessible here, makes several recommendations from an organizational perspective, starting with the premise that all information security policies around teleworking should be based on the assumption that external environments contain hostile threats. By thinking in this way, organizations can implement measures to mitigate such threats instead of reacting in the event of an incident. The NIST guidance also recommends that companies:

• Develop telework security policies defining the permitted forms of remote access, the types of devices that can use each form of remote access, and the level of access each device will be granted.
• Ensure that remote access servers are secured effectively and configured to enforce telework security policies.
• Secure organization-controlled telework devices against common threats and maintain security regularly.

As employees become more isolated while working from home and for longer periods, the importance of communication grows. The key message for individuals is to be as vigilant, if not more, of tricksters operating on the internet, and for organizations, it is to tighten cybersecurity controls.

If you need assistance on these or other privacy issues, please don’t hesitate to contact Camila Tobon.

As of our client alert issued just last Thursday afternoon, only a few counties in Northern California and San Miguel County in Colorado had issued shelter-in-place orders.

What a difference a few days makes. As the COVID-19 pandemic and the number of deaths in the U.S. continue to skyrocket upward, by the end of today multiple states (including California, New York, New Jersey, Oregon, Pennsylvania, Michigan, Ohio, Louisiana, and Illinois) will have issued statewide shelter-in-place orders. Inevitably, as the dominoes fall, more states and local jurisdictions will follow throughout this week with similar orders.

Here in Colorado, Governor Polis issued a 50% statewide reduction in force order over the weekend on March 22, 2020, and the same day, CDPHE issued an order implementing the governor’s order. This afternoon, Denver issued a shelter-in-place order for Denver County.

As we noted in our alert last week, employees associated with the 16 categories of critical infrastructure and assets identified in Presidential Policy Directive 21 are typically excluded from these orders, but the orders vary considerably in their terms and require close scrutiny, particularly for businesses that operate across multiple jurisdictions with varying (and potentially no) orders in place. Late last week, CISA issued guidance on what constitutes critical infrastructure to assist states and local governments in developing national consistency.

At Davis Graham, we are busy at work analyzing the impacts of these orders on our clients’ businesses and helping our clients deal with multiple issues arising from these orders and the pandemic generally, including:

• How do we operate efficiently when the shelter-in-place orders are inconsistent across jurisdictions in which a client operates?

• What documentation do our clients’ employees need to identify their workforce as critical infrastructure employees?

• When is a declaration of force majeure justified under the circumstances of a pandemic declaration, disaster declaration, and shelter-in-place order?

• When does a positive COVID-19 test result constitute an OSHA-recordable injury?

If you need assistance on these or other issues, or simply want a copy of the most recent shelter-in-place orders impacting your operations, please don’t hesitate to contact a Davis Graham partner.

As we all collectively work on our planning and preparation to respond to the pandemic to keep our businesses, employees, friends, and families safe, we must all be aware of the potential for a shelter-in-place order, similar to the one currently in place in Northern California. Recently, San Miguel County in Southern Colorado issued its own shelter-in-place directive, the first county-wide shelter-in-place directive in Colorado.

Please note that the existing shelter-in-place orders exempt essential employees. The Northern California order states “individuals may leave their residence to provide any services or perform any work necessary to the operations and maintenance of ‘Essential Infrastructure,’ including, but not limited to, public works construction, construction of housing (in particular affordable housing or housing for individuals experiencing homelessness), airport operations, water, sewer, gas, electrical, oil refining, roads and highways, public transportation, solid waste collection and removal, internet, and telecommunications systems (including the provision of essential global, national, and local infrastructure for computing services, business infrastructure, communications, and web-based services), provided that they carry out those services or that work in compliance with Social Distancing Requirements as defined in this Section, to the extent possible.”

Similarly, the San Miguel Order exempts a large category of activities associated with “Essential Businesses” (See Order at page 7). Given the increasing likelihood that a shelter-in-place order will be issued by the federal government, please be aware that the following industries and key resources have assets and infrastructure that are considered “critical infrastructure” pursuant to Presidential Policy Directive 21 and will have some level of exemption.

These industries are:

1. Chemical
2. Commercial facilities
3. Communications
4. Critical manufacturing
5. Dams
6. Defense industrial base
7. Emergency services
8. Energy
9. Financial services
10. Food and agriculture
11. Government facilities
12. Healthcare and public health
13. Information technology
14. Nuclear reactors, materials, and waste
15. Transportation systems
16. Water and wastewater systems

Each of these industries (and other business sectors that support them) has a vital role to play in keeping the nation’s infrastructure functioning during a pandemic.

Despite the lack of coverage in the media, planning for a pandemic has been in the works for years, and industry sector planning guides are available. For example, the see Oil and Natural Gas Sub-Sector Pandemic Guideline here.

OSHA has been hard at work and has developed a guide for Preparing the Workplace for COVID-19, and that guide can be found here.

We at Davis Graham are here to help your business succeed and to keep our community and employees safe during these challenging times. Please feel free to reach out to us if we can assist in any way, from a safe distance of at least six feet away.

Please contact a Davis Graham partner if you have any questions or if we can assist you with any legal needs.

The California Attorney General’s Office issued a revised set of regulations
for the California Consumer Privacy Act (CCPA) on February 10, 2020, correcting an omission from the February 7, 2020 version. The changes are mostly clarifications, but some revised rules relating to consumer requests may require changes or updates to compliance procedures implemented before the law’s effective date of January 1, 2020. Below is a summary.

Are changes required to online privacy policies?
Probably not. A key feature of the initial draft was the requirement to tie the source of collection, purpose for use, and disclosure to third parties to each of the identified Personal Information (PI) categories in the CCPA. This led to disclosures in a chart format with separate columns for (1) the category of PI, (2) the source(s), (3) the purpose(s) of use, and (4) the category of third party to whom PI was disclosed/sold.

The revised regulations require only that the categories of PI disclosed/sold be tied to the category of third party to whom the PI was disclosed/sold, thus eliminating the need to tie the sources and purposes of use to each category. But leaving those disclosures would not be inconsistent with the revised requirements in the regulations and may even be helpful at the time of responding to a request to know the categories of PI collected. So, changes are not strictly necessary.

Are changes required to consumer request procedures?
Maybe. Many changes further clarify already established procedures. However, the changes relating to responding to requests for deletion, requests to know the categories of PI, and requests to opt-out may require changes to procedures, as described below.

Timing. The regulations clarify that the confirmation of receipt is due 10 business
days from receipt of the request and the full response is due 45 calendar
days from receipt of the request.

Deletion. Several changes were made regarding requests for deletion. First, the two-step process for deletion – whereby the consumer would first request, then confirm the request before deletion – is now permissive instead of mandatory. The practical effect is that if a business is willing and able to honor a request for deletion (for an email address from a marketing list, for example) it can do so without requesting a separate confirmation of the request.

Second, a business no longer needs to communicate how it complied with the request (as in whether it erased, deidentified, or aggregated the PI). Instead, the business must simply inform the consumer whether or not it complied with the request.

Third, whereas before a business had to convert a request for deletion to a request to opt-out of sale if the business could not verify the individual’s identity, it is now required only to offer that option to the consumer. Presumably, if there is no sale, then a business does not have to act on requests for deletion it cannot confirm identity for.

Last, the revised regulations clarify that a business may keep a record of requests for deletion to ensure the PI remains deleted from the business’s records.

Access or Request to Know Specific Pieces of PI. In responding to a request for access, a business does not have to search for PI if: (a) the business does not maintain the PI in a searchable or reasonably accessible format; (b) the business maintains the PI solely for legal or compliance purposes; (c) the business does not sell PI and does not use it for any commercial purpose; and (d) the business describes to the consumer the categories of records that may contain PI it did not search because it meets these conditions. This differs from the initial version of the regulations, which contained a vague standard allowing businesses to deny requests for access where there was a substantial, articulable, and unreasonable risk to the security of PI, the consumer’s account with the business, or the security of the business’s systems or networks. That standard was replaced with conditions (a)-(d) above.

The revised regulations also include “unique biometric data generated from measurements or technical analysis of human characteristics” in the list of data elements that cannot be disclosed in response to a request to know. The other data elements include social security, driver’s license, and government-issued identification numbers; financial account number; health insurance or medical identification number; account password; and security question and answer. This change brings the provision in line with the PI data elements in the California breach notification statute.

Requests to Know the Categories of PI. The manner of presenting information in response to this request was modified. Whereas before the information provided had to be tied to the category of PI, now the only linking required is between the categories of PI disclosed/sold and the categories of third parties to whom disclosed/sold. An explanatory chart follows.

October 2019 Draft Regulations	February 2020 Draft Regulations
For each identified category of PI:	The categories of PI collected in the preceding 12 months
The categories of sources	The categories of sources
The business or commercial purpose for collection	The business or commercial purpose for collection or sale
The categories of third parties to whom the business sold or disclosed PI	The categories of PI sold in the preceding 12 months, and for each, the category of third parties to whom sold
The business or commercial purpose for selling/disclosing PI	The categories of PI disclosed for a business purpose in the preceding 12 months, and for each, the category of third parties to whom disclosed

These modifications may require changes to the way information is presented to consumers in response to a request to know the categories of PI.

Requests to Opt Out of Sale. The rules no longer require businesses to communicate requests to opt out of sale to all those third parties to whom PI was sold in the prior 90 days. Instead, the requests must be communicated to the third parties to whom PI was sold after the consumer’s request was received but before it was acted upon.

Requests received by Service Providers. Service providers are no longer required to provide consumers with information on how to submit requests directly to the business on whose behalf the service provider processes the PI. Instead, a service provider that receives a request to know or to delete may either act on the request or inform the consumer that the request cannot be acted upon because it was sent to a service provider.

Do businesses still have to provide an online web form for consumers to submit requests?
The revised regulations provide that businesses operating exclusively online need provide only an email address for consumers to submit requests. This follows the CCPA’s text and eliminates a requirement in the earlier draft regulations for businesses with a website to offer a web form for submitting requests. But if a web form is provided, the business can still provide it, besides the email address.

What changed in the regulations regarding service providers?
A major point of clarification in the October 2019 version of the draft regulations was the statement that service providers could collect PI on a business’s behalf. This clarification remains, but the revised regulations include limitations on what service providers can do with the PI. Specifically, a service provider is prohibited from retaining, using, or disclosing PI obtained while providing services except:

• To perform the services specified in the written contract with the business;
• To retain or employ a subcontractor, where the subcontractor meets the requirements for a service provider;
• For internal use by the service provider to:
  • Build or improve the quality of its services,
  • provided that the use does not include building or modifying household or consumer profiles or cleaning or augmenting data from another source;

• To detect data security incidents, or protect against fraudulent or illegal activity; or
• For purposes of:
  • Compliance with federal, state, or local laws,
  • Compliance with a civil, criminal, or regulatory inquiry, investigation, subpoena, or summons by federal, state, or local authorities,
  • Cooperation with law enforcement agencies concerning conduct or activity that the service provider reasonably and in good faith believes may violate federal, state, or local law, and
  • Exercising or defending legal claims.

While the conditions outlined above are generally broad, they do impose limitations on service providers’ use of PI that are arguably stricter than the limitations in the statute itself. Recall that the statute allows service providers to use PI received from a business “for the specific purpose of performing the services specified in the contract [with the business] or as otherwise permitted by [the CCPA].” This last phrase was read to allow service providers to use PI for any business purpose enumerated in the statute, which included a list that was broader than the limitations in the revised regulations.

If a service provider is using client data for a business purpose other than building or improving the quality of its services or for detection of security incidents, fraud, or illegal activity, those processing activities merit further review to determine whether they would follow the limitations in the regulations.

What do the regulations say about employee data?
The revised regulations state, in the definitions, that the collection of employment-related information, including to administer employee benefits, is considered a business purpose. The revised regulations also clarify that, in terms of providing notice, a “Do Not Sell” link is not required in the employee notice and the notice may include a link to, or copy of, the business’s policy for job applicants, employees, or contractors, rather than the website privacy policy. These clarifications give businesses greater direction on providing notice to employees and comfort regarding employee data handling as consistent with the business purposes defined in the CCPA.

What other changes are helpful from a business’s perspective?
The revised CCPA regulations include several other changes that are helpful from a business perspective. They are:

• The definition of household was narrowed so only those individuals residing at the same address who share a common device or the same service provided by the business are considered a household. Before, anyone occupying a single dwelling was considered a household.
• The regulations clarify that collecting IP address alone, without linking it to a particular consumer or household, would not constitute Personal Information.
• Under the prior version, a business would need to get the consumer’s consent to use PI for a purpose other than those communicated in the privacy policy. The revised version is more consistent with guidance from the Federal Trade Commission, requiring consent only if the new purpose is materially different than what was previously disclosed.
• The revised regulations allow sale of personal information with consumer consent absent a “Do Not Sell” link. The initial version included a prohibition on sale absent the link. Now, if a business receives the consumer’s consent, it can sell data even if it does not have the link on its website.
• The 2020 draft clarifies that data on archive or backup systems subject to a request to delete need not be targeted for deletion unless the system is restored to an active system or next accessed or used for a sale, disclosure, or commercial purpose. Thus, accessing an archive or backup system for internal controls would not require targeting for deletion following a consumer request.
• The revised regulations shield certain household information from requests for access. Where a household does not have a password protected account with the business, a business does not have to comply with a request for specific pieces of PI unless all of the consumers in the household jointly make the request, the business individually verifies the identity of each member, and the business verifies that each individual making the request is currently a member of the household.

What are the next steps for the regulations?

The comment period closes on February 25, 2020. A final draft is expected shortly thereafter. The final draft must then undergo review by the Office of Administrative Law before formal adoption by the Secretary of State. This process will take at least 30 working days after the final draft of the rules and supporting documentation are published.

If you have questions on the revised regulations, or the CCPA, please contact Camila Tobón at camila.tobon@davisgraham.com
or 303-892-7467.

The year 2020 is bringing several new employment law changes. Below is a summary of key employment law trends and new legislation to consider in 2020.

DOL Defines Joint Employment/Independent Contractor Status
Effective March 16, 2020, a new final rule from the U.S. Department of Labor (DOL) may limit the scope of joint employment liability for wage and hour matters and lead to fewer employers being considered “joint employers” under the Fair Labor Standards Act (FLSA). Overall, this is good news for employers.

Generally, a joint employer relationship is characterized by two or more companies that exercise some degree of control and supervision over the work or working conditions of the same individual. Where parties are found to be “joint employers,” both companies—including the company that is not the actual employer—will incur many of the employment-related obligations that an actual employer would owe to its employees.

The DOL’s new rule discusses the following four-factor balancing test to determine whether an entity is an “employer”:

1. Does the alleged employer hire or fire?

• The employer must have actual exercise of control—not just the “power” to hire or fire.

2. Does the alleged employer supervise and control the employee’s work schedule or conditions of employment to a substantial degree?

• This is not limited to day-to-day supervision.

3. Does the alleged employer determine the employee’s rate and method of payment?

• The DOL states that an entity requiring suppliers to pay its workers a minimum hourly wage higher than the federal minimum wage will not be considered a joint employer; a simple wage floor does not equate to control over how and how much a supplier should pay its employees.

4. Does the alleged employer maintain the employee’s employment records?

• Satisfaction of this factor alone will not establish joint employment. Further, the DOL clarified that records maintained by the potential employer regarding compliance with contractual agreements will not be considered “employment records.”

Once effective, this new rule will provide additional clarification and support to businesses/employers that have some joint employment exposure. Employers should examine their policies, procedures, and practices to see how they fit into the balancing test.

EEOC and the NLRB Revise Their Prior Anti-Arbitration Policies
On December 17, 2019, the U.S. Equal Employment Opportunity Commission (EEOC) rescinded its “Policy Statement on Mandatory Binding Arbitration of Employment Discrimination Disputes as a Condition of Employment.” This is also good news for employers. This policy had asserted, “The use of unilaterally imposed agreements mandating binding arbitration of employment discrimination disputes as a condition of employment harms both the individual civil rights claimant and the public interest in eradicating discrimination.” The Commission announced that it made this decision in light of recent U.S. Supreme Court decisions holding that “agreements to arbitrate employment-related disputes are enforceable under the Federal Arbitration Act for disputes between employers and employees.” The EEOC noted, however, that its rescission does not limit the Commission’s ability, or the ability of anyone else, to challenge the enforceability of an arbitration agreement.

Further, the National Labor Relations Board (NLRB) announced in its decision, Case No. 06-CA-143062, United Parcel Service, Inc., and Robert C. Atkinson, Jr., that it will return to a more employer-friendly standard in determining whether to defer to an arbitrator’s resolution of grievances alleging illegal disciplinary or firing practices under the National Labor Relations Act (NLRA). Under this standard, the NLRB will defer to the arbitrator’s decision where: (1) the arbitral proceedings appear to have been fair and regular; (2) all parties have agreed to be bound; (3) the arbitrator considered the unfair labor practice issue; and (4) the arbitrator’s decision is not clearly repugnant to the NLRA.

The recent positions of the EEOC and NLRB are consistent with recent U.S. Supreme Court cases favoring arbitration.

DOL Amends FLSA Regulations
Effective January 1, 2020, the DOL changed many of its regulations of the Fair Labor Standards Act (FLSA). The most publicized change was the increase to the salary basis test. As background, in order to properly classify an employee as overtime exempt under the FLSA, the employee must meet a minimum salary threshold (i.e., the salary basis test) and establish the types of responsibilities and knowledge required (i.e., the duties test).

Under the new rule, the salary basis requirement increases from $455 per week (or $23,660 per year) to $684 per week (or $35,568 per year). The revised rules further permit employers to count nondiscretionary bonuses and incentive payments (including commissions) paid at least annually, to satisfy up to 10% of the standard salary basis test.

In addition, the rule increases the minimum annual salary for highly compensated employees (who, because they fall into this category, are subject to minimal duty test requirements) to $107,432 (up from $100,000).

The DOL estimates that an additional 1.2 million workers will be entitled to minimum wage and overtime pay as a result of the increase to the standard salary threshold, and that over 100,000 workers will be entitled to overtime pay as a result of the increase to the highly compensated employee compensation threshold.

National Minimum Wage Increase
Beginning January 1, 2020, federal contractors must pay covered workers at least $10.80 per hour. The DOL also gave notice that beginning January 1, 2020, covered tipped employees performing work on or in connection with covered contracts must be paid a cash wage of at least $7.55 per hour.

Effective January 1, 2020 (or soon thereafter), the minimum wage increased (or will increase) in 26 states and several municipalities, such as Arizona: $12 an hour (Flagstaff: $13 an hour); Colorado: $12 an hour (Denver: $12.85 an hour); California: $13 an hour if the employer has 26 or more employees and $12 an hour for 25 or fewer employees (special rates in various municipalities throughout the state); and Washington: $13.50 an hour.

Therefore, companies should be mindful of these changes and update their payroll, policies, and posters accordingly.

Colorado Overtime & Minimum Pay Standards Order
The Colorado Overtime and Minimum Pay Standards (COMPS) Order (Wage Order No. 36) was finalized on January 22, 2020 and will go into effect on March 1, 2020. The most notable provisions in COMPS are an increase to the salary threshold for overtime exemptions and an expansion of the minimum wage order’s coverage to all private employers.

The initial draft of the Order proposed a minimum exempt salary threshold of $42,500, beginning on July 1, 2020, but the finalized version will instead delay and limit the increase to $40,500 on January 1, 2021. As explained above, the new federal exempt salary threshold, effective January 1, 2020, is $35,568, and the new state rules keep the wage threshold at the current federal level for 2020. COMPS will increase the threshold by $4,500 in 2022 and then $5,000 every year after that until it reaches $55,000 in 2024 (after which it will be adjusted by the same consumer price index as is the Colorado minimum wage).

Additionally, whereas Colorado’s Minimum Wage Order previously restricted coverage to four specific industries—retail and service; food and beverage; commercial support service; and health and medical industry—COMPS will presumptively apply to workers in all industries, with limited statutory exceptions.

Colorado Wage Payment Law
Effective January 1, 2020, the Colorado Wage Payment Act provides that an employer (which is defined the same as in the FLSA but also includes foreign labor contractors, migratory field labor contractors, and crew leaders) commits “wage theft,” a felony, if the employer willfully refuses to pay wages or other forms of compensation to its employees. The Act also defines intentionally paying a wage less than the minimum wage as theft, which is a felony when the theft is of an amount greater than $2,000.

Previously, the Act exempted employers from criminal penalties when the employer was unable to pay wages or compensation because of a Chapter 7 bankruptcy action or another court action resulting in the employer having limited control over his or her assets. The Act has removed this exemption.

Colorado Wage Protection Act Rule
The Colorado Wage Protection Act Rule was also amended in December of 2019 by the Colorado Department of Labor and Employment in response to the Colorado Court of Appeals Decision, Nieto v. Clark’s Market, Inc., June 27, 2019, which held that a vacation policy where employees forfeited earned vacation pay if they did not comply with company policy did not violate the Colorado Wage Claim Act (CWCA). Rule 2.15, CCR 1103-7, clarifies that although employers may cap “at a year’s worth of vacation pay” employees’ vacation time may not be forfeited.

Colorado Equal Pay for Equal Work Act
The Colorado Equal Pay for Equal Work Act, effective January 21, 2021, falls in line with similar state laws throughout the country. It contains pay equity and pay transparency provisions, a salary history ban, and requirements that employers provide notice of promotional opportunities and position wage rates. It also provides an incentive to employers that conduct proactive self-audits of compensation practices. The main provisions are summarized below:

• The Act prohibits all employers employing Colorado employees from discriminating in wages among employees based on sex (which also includes gender identity) or sex in combination with another protected status, unless differences are based upon seniority, merit, geographic location, a system that measures earning by quantity or quality of production, education/travel/experience if reasonably related to work in question, or travel.
• The Act also contains pay transparency requirements by prohibiting employers from preventing employees from discussing their own compensation information with others and prohibiting employees from doing so by requiring them to sign a waiver.
• Salary history inquiries are also prohibited under the Act. Employers may not seek the wage history of a prospective employee, rely on the wage history of a prospective employee to determine a wage rate, or discriminate or retaliate against a prospective employee for failing to disclose wage history.
• The Act also contains unique notice requirements, which require that employers make reasonable efforts to announce, post, or make known all opportunities for promotion to current employees on the same calendar day AND require that employers disclose in each job opening posting the compensation or compensation range.
• There are also recordkeeping requirements and the Act mandates that employers maintain records of job descriptions and the wage rate history of each employee for the duration of employment plus two years after the end of employment.
• An applicant or employee who believes an employer has violated the pay equity section of the Act has two years to bring a lawsuit, and there is no requirement to file a charge with the Colorado Civil Rights Division. Each time an employee receives a paycheck with a discriminatory wage rate, a new violation occurs for purposes of the two-year statute of limitations. An aggrieved employee may obtain relief for a back-pay period not to exceed three years.
• Employers may also be liable for the differences between what the employee was paid and what the employee would have been paid if there was no violation, plus an equal amount as liquidated damages. However, liquidated damages may be avoided if the employer can demonstrate good faith and reasonable grounds for believing there was no violation. Good faith can be shown if the employer, within two years prior to the lawsuit being filed, completed a thorough and comprehensive pay audit of its workforce, with the specific goal of identifying and remedying unlawful pay disparities.
• For violations of the job-posting portion of the Act, employees may file a written complaint with the director of the Colorado Department of Labor within one year of learning of the violation. If the DOL determines that a violation occurred, an employer may be subject to fines between $500 and $10,000 per violation.
• In addition, if an employee demonstrates a violation of the posting requirements of the Act, the court may order appropriate relief, including a rebuttable presumption that any records the employer was required, but failed to keep, contained information favorable to the employee’s claim. An employee may also be entitled to a jury instruction that failure to keep records can be considered evidence that the violation was not made in good faith.

In short, the Act creates significant new risks and responsibilities for employers. While the new requirements do not take effect until January 1, 2021, Colorado employers should consider reviewing their pay policies, postings, and practices with both Human Resources and employment law counsel.

The Employment & Labor Group of Davis Graham & Stubbs LLP works to assist and advise clients on virtually every aspect of the employment relationship. Please contact Lana Rupprecht or Katie Brown if you would like to further discuss these updates.

The Committee on Foreign Investment in the United States (CFIUS) is an interagency body of the federal government that is tasked with the oversight of inbound foreign investment involving U.S. businesses. For decades, CFIUS has been exercising its statutory authority under the Defense Production Act of 1950 to review and investigate transactions that would result in a foreign party gaining control of a U.S. business and occasionally making recommendations to the president of the United States to block, and even unwind, transactions that are deemed to present unresolvable national security concerns.

On January 17, 2020, the U.S. Department of the Treasury published new regulations (to take effect on February 13, 2020), which dramatically expand the scope of CFIUS’s jurisdiction, for the first time covering: (i) non-controlling investments in U.S. businesses engaged in “critical technology” and “critical infrastructure,” as well as those that handle large amounts of personal data of U.S. citizens (so called “TID” businesses), and (ii) foreign acquisition, by purchase, lease, or concession, of real estate that is located near military installations. The regulations also create a number of mandatory filing obligations under what has historically been a voluntary disclosure system.

The implications of the new regulations will be far reaching, as they now cover a wide range of investment activity that was previously exempt from review. Early stage advanced manufacturing and technology companies that are seeking foreign financing will have to be especially mindful of the rights and privileges they are willing to grant their investors, and natural resources companies operating on public lands in the western U.S. will have to pay close attention to the proximity of their assets to sensitive government facilities.

For more information about how these new regulations could affect your company, please contact Joel Benson or Almira Moronne.