Surprise Hidden in Governor Polis's New COVID-19 Indoor Mask Rule

On May 2, the office of Governor Jared Polis touted an amendment to the thirty-day extension of the state's mask mandate: Residents of Level Green counties could go mask-free when inside in groups larger than ten, as long as at least 80 percent of those present have been vaccinated.

The move was initially portrayed as a welcome loosening of restrictions that represented another step toward normalcy after more than a year of battling COVID-19. But by the next day, after another round of disappointing data regarding the disease's spread in Colorado, news outlets such as CBS4 were reporting widespread confusion among owners of grocery stores, gyms, restaurants and other establishments over how the hell to follow and/or enforce the new rule.

Their confusion was understandable: The May 2 announcement from Polis's office states that "this order is also further amended to allow indoor spaces where more than ten people are present to go without masks, so long as at least 80 percent of those individuals are fully vaccinated." But the order itself specifies that "individuals are permitted to remove their medical or non-medical cloth face coverings in Public Indoor Spaces if 80 percent of the individuals in the Public Indoor Space have shown proof of vaccination" — without offering an explanation of what that proof might entail.

We reached out to the Colorado Department of Public Health and Environment for clarification — and it turns out that the enforcement of the order calls for a variation on the vaccine-passport idea that's been greeted with widespread derision by residents of the mainly rural, conservative Colorado counties that are currently at Level Green, given their infection rate of fewer than 35 per 100,000 people.

CDPHE director of communications Jessica Bralish stresses that taking advantage of the new mask-free  amendment is strictly voluntary. "It is not required," she notes. But "if a business wants to provide an option not to wear masks, they need to verify the number of vaccinated customers in order to abide by the order. To verify vaccination, customers can show the vaccination card they received at their vaccine appointment, a picture of their vaccination card on their cell phone, or a copy of their immunization records. Coloradans are encouraged to treat their vaccine cards as legitimate personal medical records."

What about businesses that simply ask customers if they've been vaccinated? Is that good enough? In a word: No. "Businesses should not use the honor system," Bralish stresses.

Bralish offers the following example of how the system is intended to work: "A yoga class with twenty participants would need to have at least sixteen participants provide proof of vaccination to the instructor or other designated individual for the class participants to be able to remove their masks, assuming the teacher is vaccinated as well."

Just days before the new mandate went into effect, however, Westword had asked the department this question: "Can Colorado businesses require that its in-person customers be vaccinated?" The CDPHE's reply then: "Business owners cannot access a customer's protected health information, such as their COVID-19 immunization status. Customers may voluntarily share their vaccination status with the business if they choose to do so."

Now local public-health agencies will be in charge of making sure the new amendment is followed. Will the CDPHE encourage local agencies to warn or cite operations that don't comply with the proof-of-vaccination procedures? Bralish doesn't take a position on that.

"Businesses or facilities should err on the side of assuming that people entering their indoor site are unvaccinated, unless they show proof of vaccination," she suggests. "While the majority of Coloradans are still unvaccinated, most indoor public settings like grocery stores, retail stores and gyms will need to require mask-wearing."

Even in the Green zone. Click to read the May 2 update of Colorado's COVID-19 facial-covering order.