On March 11, 2020, the Colorado Department of Labor and Employment issued Colorado Health Emergency Leave with Pay (“Colorado HELP”) Rules that require certain employers to provide paid sick leave for employees with flu-like symptoms who are being tested for COVID-19. The rules take effect immediately and will remain in effect for 30 days or for the duration of the declared state of emergency, whichever is longer, up to 120 days.
The Colorado HELP Rules cover employers engaged in the following industries or workplaces:
- Leisure and hospitality;
- Food services;
- Child care;
- Education at all levels and 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);
- Nursing homes; and
- Community living facilities.
Covered employers must provide employees with flu-like symptoms who are being tested for COVID-19 up to four paid sick leave days. The paid leave entitlement ends when employees receive a negative COVID-19 test result.
If employers already offer a sufficient amount of paid leave, they need not provide additional paid sick leave unless employees have exhausted such leave and then experience a qualifying event.
Sick leave pay is due for an employee's regularly worked hours at the employee's regular rate. Employers must use the same formula they use when calculating the regular rate for overtime purposes. The regular rate includes all forms of wages and compensation. For tip-credit employees, the regular rate is the full minimum wage. If an employee's pay rate or hours worked varied before the absence, employers must use the employee's average daily pay for the preceding month.
To the extent possible, the Colorado HELP Rules state that employers and employees should comply with federal Family and Medical Leave Act (FMLA) procedures for requesting and providing leave. However, employers cannot fire employees if they are unable to provide documentation during a covered absence. Additionally, the rules incorporate the anti-retaliation protections of the Colorado Overtime and Minimum Pay Standards (COMPS) Order Number 36. The Colorado HELP Rules reinforce that the FMLA does not narrow rights and responsibilities the rules mandate.
A failure to provide paid sick leave will be akin to a failure to pay wages. The state labor department will enforce the rules and investigate alleged violations. Additionally, a private right of action is available.