Colorado's COVID powers remain despite 'health emergency' announcement

Disaster order still in effect but refocused; state health department powers remain

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In early July, Gov. Jared Polis' office issued a news release that said: “Governor Polis Ends COVID-19 Health Emergency Order.”

Following that statement, Colorado state Senate Republicans heralded that “the public health emergency would come to an end today,” the Senate GOP said in a release.

“This is something we've been advocating for on behalf of our constituents for some time now,” state Sen. Paul Lundeen, a Republican of Monument, said in the release. “Every meeting we've had with the governor has been punctuated with an inquiry as to when he would finally lift the order and declare this pandemic over in the State of Colorado. We're glad to see he finally has agreed to turn this dark page in our history.”

The reality is more complicated than Polis and the Senate GOP described — and the state generally continues to have the same powers regarding COVID-19 response as it did before Polis' new policy.

Polis' office told Colorado Community Media that the governor “ended the health emergency in Colorado” but wouldn't point specifically to what executive order constituted a “COVID-19 health emergency order” that was being lifted.

The closest action to such a comprehensive “health emergency order” appears to be Executive Order D 2020 003, issued in the early days of the pandemic in Colorado, dated March 11, 2020. That order declared a state of disaster emergency due to the coronavirus and authorized state agencies to take actions to respond to the crisis.

“The original order, D 003, was very broad because the governor had to address the health crisis, economic impacts and more.  The current order is narrowed to focus on the economic recovery and powering the Colorado comeback,” said Conor Cahill, a spokesperson for the governor.

Emergency powers

During a declared emergency, the governor's powers greatly expand. During any type of disaster emergency, among other powers, the governor may:

• Control the right to enter and exit a disaster area, along with the movement of people within the area. The governor can also quarantine persons and property.

• Commandeer or use any private property if necessary to cope with the disaster emergency.

• Suspend a statute — or state law — that lays out the procedures for conducting state business or the rules of any state agency, if strict compliance with the statute or rule would prevent or delay necessary action in coping with the disaster emergency.

That's according to a fact sheet on the governor's powers during a declared emergency written by the Office of Legislative Legal Services, a staff agency of the Colorado legislature.

Perhaps the most visible form of power the governor has exercised in Coloradans' everyday lives was the state's mask order, issued by executive order and renewed many times. The governor's mask order expired June 1, according to the governor's office, but some of its requirements have generally lived on through an updated public health order from the Colorado Department of Public Health and Environment.

What's more, that department's power to issue public health orders — including those regarding capacity restrictions on businesses, quarantine guidance or masks — have not changed as a result of Polis' new policy.

In other words, Colorado's public health orders can still require quarantine policies, restrictions on businesses and other measures in response to the coronavirus. The statewide stay-at-home order in spring 2020 and the safer-at-home order that came after it were issued via public health orders. The COVID-19 “dial” policies — which outlined restrictions on businesses and other settings based on local virus spread — also arrived via public health order.

“Public health orders do not rely on a disaster emergency declaration and can be issued at any time to control the spread of disease and protect public health,” said a statement from the Colorado State Joint Information Center, which takes questions for the state public-health department.

Some provisions restated

What Polis' July 8 action did was rescind many executive orders the governor issued in response to the pandemic, but it also restated some provisions, including to continue the state's disaster declaration.

“My verbal order of March 10, 2020, declaring a disaster emergency … is hereby memorialized by this executive order and shall have the full force and effect of law as if it were contained within this executive order,” the July 8 executive order says.

What that means is that Polis' emergency powers appear to remain unchanged, but the governor appears to be focusing his powers only in certain ways.

“Over seventy percent of adults have now received at least one dose of the lifesaving COVID-19 vaccine, and we are beginning to see life return to a new normal. I am therefore rescinding all previous executive orders issued due to COVID-19 and amending and restating this executive order to focus only on those measures related to the state's recovery from the COVID-19 pandemic emergency,” the July executive order says.

Added Cahill: “Just as Colorado is still in the recovery phase for fiscal purposes from other disasters, we expect Colorado will remain in the recovery phase so long as federal funds are available.”

Spanning 12 pages, the executive order still issues numerous dense directives, such as for administering the COVID-19 vaccine and ensuring that health care facilities have sufficient resources to treat COVID-19 patients, improving Colorado's economic recovery, and maintaining access to additional federal funding, the order's text says.

Some language that the order says it rescinds is nevertheless reinstated elsewhere in the order. For example, the order says the governor rescinds Executive Order D 2021 088, which provides some protection for tenants at risk of eviction amid the pandemic. But part of order D 2021 088's language is inserted verbatim back into the new executive order on page 8.

John Douglas, director of Tri-County Health Department, said on July 15 that he wasn't aware of the “seeming contradiction” about the disaster declaration continuing.

“I assumed we were not (under emergency order),” said Douglas, whose department is the local health agency for Adams, Arapahoe and Douglas counties.

County and district public health agencies have independent authority to issue local public health orders, for which a statewide disaster declaration is not required, according to Mellissa Sager, policy and public affairs officer for Tri-County Health.

Douglas wondered whether the crowd at the Major League Baseball All-Star Game happening five days after the governor's new executive order acts as a “double barrel” mechanism for making people less cautious. So far, he hasn't seen evidence of that, he said.

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