BREAKING NEWS: Colorado Department of Labor and Employment issues paid-sick leave rule regarding coronavirus testing

According to a verbally issued executive order by Colorado Governor Polis, the Colorado Department of Labor and Employment has issued a rule (the “Colorado HELP” rule, aka the Colorado Health Emergency Leave with Pay rule) requiring certain employers to provide up to 4 days of paid leave for employees awaiting a coronavirus test result. Rule 3 reads, as follows:

Rule 3. Paid Sick Leave for Certain Employees.
3.1 Any employer engaged in the field of leisure and hospitality, food services, 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 shall provide up to four days of paid sick leave for an employee (A) with flu-like symptoms and (B) who is being tested for COVID-19. The paid sick leave ends if an employee receives a negative COVID-19 test result.

3.2 These rules do not require an employer to offer additional days of paid sick leave if it already offers all employees an amount of paid leave sufficient to comply with Rules 3.1. However, an employee who already exhausted his or her paid leave allotted by the employer, but then has flulike symptoms and is being tested for COVID-19, is entitled to the additional paid sick days provided by Rule 3.1.
3.3 During paid sick leave covered by these rules, pay shall be provided (A) at the employee’s regular rate of pay (the COMPS Order Rule 1.8 definition of “regular rate of pay” is incorporated into this rule), including all forms of wages and compensation (but increased to the applicable minimum wage for an employee paid below the minimum wage due to a tip credit), and (B) for the employer’s regularly worked hours. To the extent that the employee’s rate of pay or hours worked had varied before the absence for illness, pay shall be in the amount of the employee’s average daily pay for the preceding month.
3.4 To the extent feasible, employees and employers should comply with the procedures of the federal Family Medical Leave Act (“FMLA”) to pursue and provide paid sick leave under these rules, except that (A) no employer may terminate an employee for inability to provide documentation during an illness covered by these rules, and (B) FMLA provisions do not narrow the rights and responsibilities provided by these rules.

Governor Polis has stated an intent to continue to explore ways the state can respond, including expanding availability of unemployment benefits and possibly freeing up state-government money to assist with other wage losses.

The CDLE’s page on its Colorado HELP rule, including the CDLE’s FAQ list, is available here, which includes the following Q&As:

What does the rule do?

• Temporarily requires employers in certain industries (listed below) to provide a small amount of paid sick leave to employees with flu-like symptoms who are being tested for coronavirus COVID-19.

How much paid sick leave must be provided?

• The employer must provide up to four days of paid sick leave to employees with flu-like symptoms who are being tested for coronavirus COVID-19. If the employee receives a negative test result, the paid leave ends.

Is this a requirement on top of sick leave an employer already provides?

• No. If an employer already provides the paid leave necessary to meet these rules’ requirements, then the employer does not need to provide additional leave. However, if an employer does not already provide enough paid sick leave to comply with these rules, it will have to provide additional paid sick leave to meet the rules’ requirements. And if an employee already exhausted any paid leave allotted by the employer, but then has flu-like symptoms and is being tested for COVID-19, he or she is entitled to the additional paid sick days these rules provide.

Which employees and employers are covered by these sick leave rules?

• Employers and employees in one of the following industries or jobs:
  • Leisure and Hospitality
  • Food Services
  • Child care
  • Education, including transportation, food service, and related work at educational establishments
  • Home health, if working with elderly, disabled, ill, or otherwise high-risk individuals
  • Nursing homes
  • Community living facilities
• Workers are covered regardless of pay rate or method (hourly, weekly, piece rate, etc.); the daily pay during leave is either their established daily rate or, if their pay fluctuates, their average daily pay for the past month.

How long will the rule stay in effect?

• The rules take effect March 11, 2020, for 30 days, or longer if the state of emergency declared by the Governor continues.

Why are these rules being created?

• With the continuing spread of coronavirus COVID-19, coming to work while ill poses a serious threat to the health and safety of co-workers, others at the business, and the public generally. These rules will temporarily entitle certain employees to paid sick days in order to limit the spread of this disease.

Will additional funds be available for workers who need to be out of work longer than four days?

• The current emergency rules only speak to paid leave for the four-day period required for testing, because that is what CDLE could do immediately. The Governor has asked CDLE to identify other potential supports and wage replacement, such as access to unemployment insurance. These options are under review to determine rulemaking authority, eligibility, etc.