COVID-19: Colorado Employers and Limited Paid Sick Leave

Some businesses in Colorado will need to provide workers with up to 4 days of paid sick leave if they have flu-like symptoms and are being tested for the coronavirus, or are under instructions from a healthcare provider to quarantine.

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What employers in the Centennial State need to know about the recently updated Colorado HELP rules

Some of Colorado’s employers are under a temporary mandate to provide limited paid sick leave to employees.

The mandate applies to workers:

  • With flu-like symptoms who are being tested for coronavirus
  • Who are under instructions from a healthcare provider to quarantine because of a risk of having the highly-contagious ailment

Covered employers must provide up to 4 days of paid sick leave to employees who are already scheduled for work under the recently enacted Colorado Health Emergency Leave with Pay (Colorado HELP) rules.

If the worker receives a negative COVID-19 test result, the paid sick leave ends.

If an employee has already exhausted any paid sick leave allotted by the employer, but then has flu-like symptoms and is being tested for COVID-19, the worker is entitled to the additional paid sick days that the rule provides.

Colorado wage law does not require sick pay or leave apart from the recent HELP requirement.

Updated list of industries

An April 3 update expanded the list of industries that have to comply. An estimated 25% of the state’s workers are affected by the requirement, Scott Moss, Director of Division of Labor Standards and Statistics, told Workest via email.

According to Moss, the workers getting paid leave are those deemed most likely to be interacting with:

  • Large numbers of the public
  • Food
  • Vulnerable populations

The state’s Division of Labor and Standards cited research in its notice of adoption of the temporary rules indicating that many workers cannot afford to take time off when ill because they don’t have paid sick time. The research also states that paid sick leave is less common for low-paid workers. In addition, the notice notes that the recommendations of the Centers for Disease Control and Prevention focus on avoiding contact with those who are ill or potentially ill with COVID-19.

Many workers cannot afford to take time off when ill because they don’t have paid sick time.

Industries that must comply

The paid sick leave requirement applies to employers in the following industries:

  • Leisure and hospitality
  • Retail stores that sell groceries
  • Food and beverage manufacturing
  • Food services
  • Child care
  • Education, including related work such as transportation and food service
  • Nursing homes and community living

Workers covered by the emergency leave with pay rule

Workers in the above industries have coverage regardless of whether they receive payment by the hour, weekly, or at a piece rate.

Regular rate of pay

During the emergency leave with pay rule, workers must receive payment at their regular rate of pay, including all forms of wages and compensation.

If the worker’s hours vary, then the worker will receive payment for their average daily pay for the preceding month.

Workers who receive payment less than the minimum wage because of tip credit must receive payment that is the applicable minimum wage.

Employees only receive payment for the time they would have worked.

Documentation

Employers may require that employees submit documentation from a healthcare provider to support the employee’s need to take paid sick leave under the HELP rules. The documentation can come from:

  • The healthcare provider who prescribed the COVID-19 test, or
  • Who instructed the employee to quarantine or isolate, or
  • From the provider of the COVID-19 test

The documentation does not have to be a sworn affidavit and can be a duplicate rather than an original.

No employer may fire a worker because of the worker’s inability to provide documentation during an illness covered by the rules.

Exception

If employers already provide paid leave that meets the rule requirements, then the employer does not have to provide additional leave.

As mentioned above, if an employee has already exhausted any paid sick leave allotted by the employer, but then has flu-like symptoms and is being tested for COVID-19, the worker is entitled to the additional paid sick days the rule provides.

State of emergency

Gov. Jared Polis declared a state of emergency because of COVID-19 on March 10. The next day, Colorado’s Department of Labor issued the HELP rules. The governor’s stay-at-home order went into effect on March 26 and is expected to expire on April 26.

The emergency leave with pay requirement increased the number of industries that have coverage on April 3. The requirement will likely be in place as long as the state of emergency is in place. Moss said the requirement could extend into the upcoming “safer at home” period.

As of April 27, Colorado residents shifted from the “stay at home” requirement to a “safer at home” phase involving recommendations for residents and restrictions on businesses able to reopen.

Emergency leave

Colorado might be the first state to provide paid sick leave for testing; albeit with accompanying flu-like symptoms. Moss said California just did the same, but “more broadly.”

“A number of states already had paid leave by statute, so they didn’t need such emergency rules,” he said.

Under an executive order signed by California Gov. Gavin Newson on April 16, the following workers will receive 2 weeks of supplemental paid sick leave related to COVID-19, according to an announcement:

  • Farm workers
  • Grocery store and fast-food employees
  • Delivery drivers

The order applies to employers with more than 500 employees in the United States. Newsom’s order requires that employers provide sick leave for full-time workers who have the virus or who cannot work because of quarantine orders, in addition to leave they may already have.

By covering those who work for large employers, Newsom’s executive order fills the gap left by the recently enacted federal law that requires employers to provide emergency paid sick leave but exempted those with more than 500 workers. The Families First Coronavirus Response Act mandates paid sick leave and expands family leave for companies with less than 500 employees through 2 laws contained within the FFCRA, the Emergency Paid Sick Leave Act, and the Emergency Family and Medical Leave Expansion Act.

Private employers

Some private employers are also beefing up their paid sick leave offerings in response to the pandemic, but, in general, such leave is tied to a positive diagnosis and mandatory quarantine. Target Corp. put into place an emergency leave policy that offers up to 2 weeks paid sick leave for workers with a COVID-19 diagnosis or who have been formally quarantined. Walmart rolled out emergency leave after an associate tested positive for COVID-19.

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