Colorado Issues Temporary Rules on Paid Sick Leave in Response to COVID-19

UPDATE (4/30/20): On April 27, 2020, the Colorado Department of Labor and Employment significantly amended the Colorado HELP Rules again. The amendments primarily consist of changes to the required sick leave period and compensation for it as well as an expansion of the rule’s applicability to additional industries. The rules now require employers to provide up to 80 hours of sick leave at two-thirds of the employee’s regular rate of pay if the employee displays flu-like or other respiratory illness symptoms and is being tested for COVID-19 or is under instructions by a healthcare provider or authorized government official to quarantine or isolate themselves. The rules also now apply to employees working in retail, real estate sales and leasing, offices and office work, elective health services (including medical, dental, and other health services), personal care services (including hair, beauty, and pet services), and food and beverage manufacturing.

UPDATE (4/2/20): The Colorado Department of Labor and Employment has amended the Colorado HELP Rules mandating paid sick leave for certain industries. The rules now include retail establishments that sell groceries in the list of industries subject to the rules. The rules also now provide paid sick leave to employees who have been instructed by a health care provider to “quarantine or isolate due to a risk of having COVID-19.” The summary below has been updated to reflect these amendments.

On March 10, 2020, Colorado’s Governor Jared Polis declared a state of emergency in response to the growing numbers of identified cases of the novel coronavirus, COVID-19, in Colorado and the United States. Governor Polis directed the Colorado Department of Labor and Employment to issue emergency rules mandating paid sick leave for workers in specified industries who lack access to paid leave. Accordingly, on March 11, 2010, the department issued the Colorado Health Emergency Leave with Pay Rules, which took effect immediately. The rules were amended on March 26, 2020, and will remain in effect for the longer of 30 days or the duration of the Governor’s State of Disaster Emergency, up to a maximum of 120 days.

Under these rules, any Colorado employer “engaged in the field of leisure and hospitality, food services, retail establishments that sell groceries, child care, education at all levels (including related services, including but not limited to cafeterias and transportation to, from, and on campuses), home health care (working with elderly, disabled, ill, or otherwise high-risk individuals), operating a nursing home, or operating a community living facility” is required to provide up to four days of paid sick leave to any employee with flu-like symptoms who is being tested for COVID-19, or who is under instructions from a health care provider to quarantine or isolate due to risk of having COVID-19. (The employer may end the period of paid sick leave if the employee receives a negative test result.) The rules do not specifically require an employer to provide paid sick leave to an employee who tests positive for COVID-19 and requires quarantine or treatment resulting in additional lost work time or wages, though the rules do reference an employee’s potential entitlement to medical leave under the federal Family and Medical Leave Act. Detailed descriptions of the covered industries are included in the department’s FAQs.

The paid leave must be provided at the employee’s regular rate of pay for regular hours worked. However, the rate of pay must be increased to minimum wage for employees paid below minimum wage due to a tip credit. If the employee’s rate of pay or hours worked varied prior to the absence for illness, payment should be made in the amount of the employee’s average daily pay for the preceding month. Employers who already offer paid sick leave in compliance with the emergency mandate are not required to provide additional leave; however, if an employee has already exhausted his/her paid sick leave and then displays flu-like symptoms and is being tested for COVID-19, then that employee would be entitled to an additional four days of paid sick leave.  Further, employers are not permitted to terminate an employee due to an inability to provide documentation during a COVID-19 illness. Violation of these rules constitutes a failure to provide wages, and violations may be subject to fines and penalties under Colorado’s Minimum Wage Order No. 35 (until March 15, 2020) or Colorado’s Overtime and Minimum Pay Standards Order No. 36 (on and after March 16, 2020).

Employers operating within the fields subject to the Colorado HELP Rules should be prepared to comply with the rules and consult with qualified employment counsel if necessary. Constangy attorneys will continue to monitor the status of employment rules issued pursuant to the declared State of Emergency and will keep employers informed of any changes, including any challenges to enforceability.  If you have any questions about this or other workplace issues, please do not hesitate to contact any Constangy attorney.