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 food services, hospitality, childcare, healthcare, and education who currently lack access to paid leave. Accordingly, on March 11, 2010, the Department issued the Colorado Health Emergency Leave with Pay Rules (“Colorado HELP,” 7 CCR 1103-10), which took effect immediately. The rules 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, 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 for any employee with flu-like symptoms who is being tested for 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 in the event the employee has a positive COVID-19 test result 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 (FMLA).

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 for inability to provide documentation during a COVID-19 illness. Violation of the emergency 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 emergency rules should immediately prepare to comply with the rules and consult with qualified employment counsel if necessary.